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suaded that  in  no  other  similar  space  can  so  much  practical  legal  knowledge  be 
found  as  in  this  treatise. 

Upon  the   common   questions   of  jurisdiction,  consideration,  agen<  v. 

CONTRACTS,  PARTNERSHIPS,  BILLS  AND  NOTES,  SALES,  BAILMENTS,  CARKIKK^. 
THE  DOMESTIC  RELATIONS,  THE  COMMENCEMENT  AND  TRIAL  OF  CAUSES,  THE 
RULES  OF  EVIDENCE   AND   OF   DAMAGES,    EXECUTIONS,    APPEALS,    &C. ,  &C. ,  the 

work  is  reliable,  comprehensive  and  complete. 

It  is  equally  so  with  reference  to  those  special  questions,  so  embarrassing  at 
times  to  justices  and  to  practitioners  in  their  courts,  and  even  to  the  learned 
members   of  the  profession.     Among  these  are  those  relating  to  SURETYSHIP, 

TENDER,   PRESUMPTIONS,    ARBITRATIONS,    SET-OFF,  &C. ,  &C.      It   also   embraces 

the  most  recent  decisions  in  regard  to  fixtures,  what  is  real  and  what  is 
personal  estate,  (including  the  mooted  questions  of  hop*,  hop-roots,  growing 
grass  and  fruits,)  exempt  property,  line  trees,  injuries  by  or  to  animals,  divisian 
fences,  and  a  variety  of  similar  topics,  which  require  daily  elucidation  and  de- 
cision in  the  town  as  in  the  higher  courts. 

In  all  these  respects,  and  others,  the  work  of  the  editor  has  been  faithfully 
and  intelligently  performed,  making  the  treatise  an  indispensable  aid  to  those  for 
whose  use  it  is  designed,  and  a  valuable  addition  to  any  law  library. 

Crocker  on  Sheriffs. 

Second  Edition.     Price    .     .     .     $7.50. 

The  Duties  of  Sheriffs,  Constables   and  Coroners.     By  G.  G.  Crocker.     Re- 
vised and  enlarged,  and  adapted  to  the  Western   and  Southern  States. 

contents. 
The  Duties  of  Sheriffs.— Chapter  I.  Of  |  duties  under  the  election  laws.  VIII.  Of  letting 
their  election,  qualifications  and  entering  upon  !  prisoners  to  bail.  IX.  Of  their  duties  in  courts  of 
their  duties.  II.  Of  their  resignation  and  removal  j  special  sessions.  X.  Their  duties  in  court-  of 
from  office.  III.  Of  the  under  sheriff,  deputies  J  record.  XL  Drawing  and  summoning  jurors.  XII. 
and  jailors.  IV.  Of  the  powers  and  duties  of  i  Of  compelling  the  attendance  of  witnesses.  XIII. 
sheriffs.  V.  Their  powers  and  duties  in  serving  j  Their  duties  as  keepers  of  the  jails.  XIV.  Their 
process.  VI.  Of  the  return  of  process.  VII.  J  duties  as  keepers  of  the  jails  in  criminal  cases. 
Their  duties  as  peace  officers  and  on  arrests  for  ;  XV.  Of  the  execution  of  sentence.     XVI.  Of  the 


crime — When  they  may  act  without  warrant — Of 
the  warrant  of  arrests— Of  the  arrest — Of  bringing 
the  prisoner  before  the  magistrate — Search  war- 
rants— Fugitives  from  justice  from  other  States — 
Where  religious  meetings  are  disturbed — Then- 
duties  under  peace  warrants— Disorderly  persons 
—Beggars  and  Vagrants— To  prevent  gaming— 
To  prevent  racing — To  prevent  prize  fighting—To 
prevent  cruelty  to  animals — To  prevent  intempe- 
rance—To investigate  the  origin  of  fires—  Their 


execution  of  process  in  civil  cases.  XVII.  Of 
arrests  in  civil  cases.  XVIII.  Arrest  and  bail. 
XIX.  Of  the  service  of  the  summons.  XX.  Claim 
and  delivery  .of  personal  property.  XXI.  Attach- 
ments— Attachments  against  foreign  corporations, 
non-resident  or  absconding  or  concealed  defend* 
ants — Attachments  against  absconding,  concealed 
or  non-resident  defendants — Attachment^ 
foreign  corporations- Warrant  son  demand 
ships.     XXII.  Of  writs  of  ne  exeat.     XXIII.   Of 


the  execution.  XXIV.  Of  the  levy.  XXV.  Of 
the  personal  property  subject  to  levy.  XXVI.  Of 
sales  under  executions.  XXVII.  Sale  of  personal 
property.  XXVIII.  Of  the  sale  of  real  estate. 
XXIX.  Of  the  redemption  of  lands  sold.  XXX. 
Sale  of  lands  under  decrees.  XXXI.  Executions 
against  the  body.  XXXII.  Writ  of  possession. 
XXXIII.  Imprisonment  in  civil  actions.  XXXIV. 
Liberties  of  the  jail.  XXXV.  Escapes.  XXXVI. 
Writs  of  habeas  corpus  and  certiorari.  XXXVII. 
Writs  of  inquiry — Writ  of  inquiry  to  assess  dam- 
ages in  an  action — Writ  of  ad  quod  damnum — 
Writ  of  inquiry  upon  the  goods  and  chattels  of  one 
convicted  or  outlawed  for  treason.  XXXVIII. 
Special  proceedings — Warrant  under  the  non-im- 
prisonment act — Proceedings  supplementary  to  the 
execution — Process  in  actions  for  penalties — Arrest 
in  an  action  for  a  penalty  under  statutes  relative 
to  the  manufacture  of  salt — Execution  of  process 
of  judicial  officers — Proceedings  in  cases  of  in- 
solvents— Summoning  jurors  under  a  writ  de  luna- 
tico  inquirendo — Summoning  jurors  in  plank  road 
cases — Warrant  for  the  delivery  of  official  books 
and  papers — Warrant  to  deliver  possession  of  canal 
premises,  books  and  papers — Forcible  entries  and 
detainers — Summary  proceedings  to  obtain  posses- 
sion of  lands — Collection  of  fines — County  Treas- 
urer's warrant  against  collectors — Warrant  to  col- 
lect unpaid  taxes — Notifications  and  warrants  of 
the  comptroller — Their  duties  concerning  State 
lands — Distraining  inanimate  property — Wrecks — 
Their  powers  and  duties  under  the  Military  Code 
— Elections.  XXXIX.  Of  their  duties  in  surro- 
gates' courts.  XL.  Bonds  taken  by  sheriffs. 
XLI.  Attachments  for  contempt.  XLII.  Actions 
by  sheriffs.     XLIII.  Actions  against  sheriffs. 

The  Duties  of  Coroners. — I.  Of  the  election, 
qualification  and  duties  of  coroners.  II.  Crimes 
cognizable  by  coroners — Murder — Manslaughter  in 


the  first  degree — Manslaughter  in  the  second  de- 
gree— Manslaughter  in  the  third  degree — Man- 
slaughter in  the  fourth  degree — Justifiable  homi- 
cide—Excusable  homicide— Wounding— Concealing 
the  death  of  a  bastard  child — Suicide — Principals 
— Accessories.  III.  Coroners'  inquests.  IV.  Arrest 
and  examination  of  offenders.  V.  Execution  of 
process  where  sheriffs  are  parties.  VI.  When 
coroners  to  execute  the  office  of  sheriff. 

The  Duties  of  Constables.— I.  Of  theelec- 
t'on  and  duties  of  constables.  II.  Service  of  the 
summons.  III.  Service  of  attachments.  IV.  Ser- 
vice of  warrants.    V.  Proceedings  for  the  recovery 

j  of  personal  property.    VI.  Venire  and  trial.    VII. 

I  Compelling  the  attendance  of  jurors  and  witnesses. 

j  and  punishing  contempts.  VIII.  Justices'  execu- 
tions.   IX.  Duties  of  constables  in  special  proceed - 

|  ings — In  bastardy  cases — In  cases  of  lunacy — 
Habitual  drunkards — Idle  and  truant  children — 

I  Hawkers  and  pedlers — Under  the  highway  laws — 

I  Summoning  jurors  to  assess  damages  on  opening 
highways— Encroachments  upon  highways— Drain- 
ing swamps — Search  warrants  for  goods  pawned — 
When  summoned  to  attend  courts.  X.  Actions 
against  constables. 

j  Fees  of  Sheriffs,  Coroners  and  Consta- 
bles.— I.  Of  the  fees  of  officers  generally.     II. 

i  Fees  of  sheriffs — For  services  rendered  the  state — 

i  For  services  rendered  the  county — Fees  for  sum- 
moning jurors — Fees  in  civil  actions — Fees    on 

!  executions — Fees  on  attachments  against  foreign 

I  corporations,  non-resident  or  absconding  or  con- 
cealed debtors ;  and  against  ships — Fees  on  writs 
of  habeas  corpus  and  certiorari — Fees  in  other 
cases.  III.  Coroners'  fees.  IV.  Constables'  fees. 
!l  Forms. — Forms  for  sheriffs — Forms  for  coro- 
ners— Forms  for  constables,  j  % 
Indexes. — General  index — Index  to  forms. 


J&etiedicVs  Admiralty  Practice. 


Second  Edition.     Price  $7.50. 

"  The  American  Admiralty,  its  Jurisdiction  and  Practice,"  with  practical  forms 
and  directions.   By  Erastus  C.  Benedict,  LL.D.  A  new  and  enlarged  edition. 

This  book,  so  long  and  favorably  known  as  the  standard  work  on  the  subject 
of  the  American  Admiralty,  has  been  so  long  out  of  print,  that  for  some  years 
occasional  second-hand  copies  of  the  first  edition  have  been  readily  sold  at  three 
times  the  original  price.  The  author  was  unwilling  to  reprint  before  some 
doubtful  questions  had  been  settled  by  Congress  or  the  courts.  The  organization 
of  the  courts,  the  jurisdiction  and  the  practice  being  now  established  for  appa- 
rently long  years  to  come,  he  has  prepared  this  edition,  sparing  no  pains  to  make 
it  as  worthy  of  professional  favor  now,  when  the  national  domain  has  been  so 
greatly  extended  and  the  admiralty  jurisdiction  embraces  our  vast  extent  of 
navigable  lakes  and  rivers,  as  the  first  edition  was,  when  a  few  classes  of  cases, 
arising  on  the  high  seas,  were  practically  the  limit  of  that  peculiar  and  beneficial 
jurisdiction. 

The  text  has  been  carefully  revised  and  adapted  to  the  present  state  of  the 
subject,  with  considerable  additions  on  the  subject  of  prize  causes,  in  which  the 
nation  has  recently  had  so  large  an  experience.  The  authorities  cited,  including 
about  four  hundred  new  cases,  have  been  verified  and  more  correctly  referred  to. 
The  collection  of  court  rules  and  statutes  relating  to  the  practice  is  much  more 
complete — the  practical  forms  and  directions  have  been  much  improved  and 
extended,  and  a  new  and  most  copious  general  index  to  the  whole  work  has  been 
prepared. 

The  publishers  offer  it  to  the  profession  as  a  work  invaluable  to  the  student, 
and  of  the  highest  utility  and  convenience  to  the  admiralty  lawyer. 


LAW  BOOKS  PUBLISHED  BY  BANKS  &  BROTHERS. 


CONTENTS. 


Chapter  I.  General  View.  II.  Jurisdiction. 
III.  Constitutional  Construction.  IV.  Admiral- 
ty and  Maritime  Law.  V.  The  Ancient  Juris- 
diction of  the  English  Admiralty.  VI.  The  strife 
between  the  Common  Law  Courts  and  the  Admi- 
ralty, in  the  16th  and  17th  Centuries.  VII.  The 
English  Admiralty  at  the  time  of  the  American 
Revolution.  VIII.  The  Admiralty  Jurisdiction  of 
Scotland  and  Ireland.  IX.  The  Admiralty  and 
Maritime  Jurisdiction  of  the  British  Colonies.  X. 
The  Jurisdiction  of  the  State  Courts  of  Admiralty. 

XI.  The  Admiralty  and  Maritime  Jurisdiction  of 
France  and  other  portions  of  Continental  Europe. 

XII.  "Admiralty"  and  "Maritime."1  XIII. 
Trial  by  Jury — Suits  at  Common  Law — Suits  in 
Personam — Commerce.  XIV.  The  Maritime  Law 
— Maritime  Contracts.  XV.  Ships  and  Vessels. 
XVI.  Seas— Lakes— Rivers.  XVII.  The  Question 
considered  on  Authority  in  Special  Cases.  XVIII. 
Admiralty  Practice — The  Organization  of  the 
Courts.  XIX.  The  practice  of  the  American  Ad- 
miralty Courts  historically  considered.  XX.  The 
General  Character  and  Course  of  Admiralty  Pro- 
ceedings. XXI.  Practice  of  the  District  Court — 
The  Libel.  XXII.  Commencement  of  the  Suit. 
XXIII.   Mesne   Process.      XXIV.   Interlocutory 


Sale  or  Delivery  of  Property.  XXV.  Return  of 
Process — Default — Appearance.  XXVI.  The 
Pleadings  after  the  Libel.  XXVII.  Amendments 
and  Supplemental  Pleadings.  XXVIII.  Stipula- 
tion and  Bail.  XXIX.  Seamen"s  Wages.  XXX. 
Prize  Causes.  XXXI.  Hearing.  XXXII.  Decree. 
XXXIII.  Execution.  XXXIV.  Petitions— Mo- 
tions— Orders — Rules — Notices.  XXXV.  Admi- 
ralty and  Maritime  Crimes.  XXXVI.  Limitations. 
XXXVII.  The  Circuit  Courts  of  the  United  States 
— Their  Jurisdiction  and  Practice  in  Admiralty 
and  Maritime  Cases.  XXXVIII.  The  Supreme 
Court  of  the  United  States — Its  Jurisdiction  and 
Practice  in  Admiralty  and  Maritime  Cases. 

Appendix. — Admiralty  Rules  established  by 
the  Supreme  Court — Rules  of  Practice  of  the  Su- 
preme Court — Rules  of  the  Circuit  Court  for  the 
Southern  District  of  New  York,  on  Appeals — Rulos 
of  the  District  Court  for  the  Southern  District  of 
New  York — Rules  of  the  Circuit  Court  for  the 
Northern  District  of  New  York — Rules  of  the 
District  Court  for  the  Northern  District  of  New 
York — Rules  of  the  Circuit  Court  for  the  Eastern 
District  of  New  York— Rules  of  the  District  Court 
for  the  Eastern  District  of  New  York — Statutes — 
Practical  Forms. 


Goddard  on  Easements. 

Price  $5.50. 

A  Treatise  on  the  Law  of  Easements,  by  John  Leybourn  Goddard,  of  the 
Middle  Temple,  Barrister-at-Law. 

Smith  #•  Soden's  landlord  and   Tenant. 

Price  $6. 

vA.  Manual  of  the  Law  of  Landlord  and  Tenant,  by  Horace  Smith,  B.A.,  and 
Thomas  Spooner  Soden,  M.A.,  edited  by  Lewis  W.  Cave,  B.A. 


In   Press. 


Barbour's  Chancery  Practice.    2  "Vols. 
Lansing's  Supreme  Court  Reports.    VoL  6. 
Dayton  on  Surrogates.    Fourth  Edition. 
New,  York  Court  of  Appeals  Report?.    Vol.  48. 


BANKS    &.    BROTHERS, 

144    ISrASS^XJ    STREET,    INTETV    YORK    CITY, 


473   &   475   BROADWAY.   ALBANY. 


TREATISE 


ox 


EQUITY   JURISPRUDENCE. 


BY  JOHN   WILLARD,   LL.  D. 

LATE   ONE   OF  THE   JUSTICES    OF  THE   SUPREME   COURT   OF   THE   STATE   OF   ITEWYORK. 


Bonus  jndex  secundum  sequum  et  bonum  judicat,  et  asquitatem  stricto  juri  preefert. 

Co.  Litt.  24  ». 

Optima  est  lex  quae  minimum  relinquit  arbitrio  judicis,  optimus  judex  qui  minimum  sibi. 

Bacon's  Aphorisms. 


NEW    YORK: 
BANKS   &   BROTHERS,   LAW   PUBLISHERS, 

No.  144  NASSAU  STREET. 
ALBANY:    47b    BROADWAY. 

1863. 


567418        aW*/' 


T 

|SG3 


Entered  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and  fifty-five, 

By   GOULD,  BANKS  &   Co. 

<  tie  clerk's  office  of  the  district  court  of  ine  northern  district  of  New-York. 


PREFACE. 


ALTHOUGH  there  are  numerous  treatises  devoted  to  the  subject  }f 
.  Equity  Jurisprudence,  yet  there  is  none  which  occupies  the  same 
ground  as  the  following.  Those  which  are  published  in  England  neces- 
sarily embrace  much  matter  which  is  of  but  little  practical  value  to  us, 
and  the  commentaries  of  Mr.  Justice  Story  professedly  treat  Equity  Ju- 
risprudence, as  it  was  administered  in  England  and  America  at  the  time 
he  wrote.  The  learned  author  has  also,  in  numerous  instances,  while 
tracing  the  doctrines  of  the  court  to  their  origin,  compared  the  law,  as 
administered  in  England  and  America,  with  the  corresponding  portions 
of  the  civil  law,  and  of  the  laws  of  the  most  enlightened  nations  of  con- 
tinental Europe. 

The  plan  of  the  following  treatise  has  not  lead  me  to  pursue  the  same 
course.  Though  most  of  the  topics  which  are  handled  by  other  writers 
on  Equity  Jurisprudence,  and  some  which  are  not  noticed  by  them  at  all, 
are  treated  with  more  or  less  fullness  in  this  work,  yet  they  are  discussed 
with  reference  to  the  law  as  it  exists  in  this  state  at  the  present  time, 
modified  as  it  has  been  by  the  Revised  Statutes,  the  Code  of  Procedure 
and  the  constitution  of  184G.  The  reported  decisions  of  the  late  court 
of  chancery,  in  connection  with  the  decisions  in  equity  of  the  eourts 
under  the  present  constitution,  afford  of  themselves  sufficient  materials 
for  a  system  of  Equity  Jurisprudence.  I  have  not,  however,  confined 
myself  solely  to  these,  but  have  freely  quoted  the  decisions  of  the  Eng- 
lish courts,  and  those  of  our  sister  states,  when  they  served  to  confirm 
or  illustrate  the  doctrines  advanced.  But  I  have  not  attempted  to  point 
out  the  diversities  which  doubtless  exist  in  the  several  states,  arising 
from  local  usage  and  statutory  regulations. 

It  would  be  unjust  to  those  who  have  written  on  the  same  and  kindred 
subjects,  not  to  admit  that  I  have  been  greatly  instructed  and  aided  by 

(  iii  ) 


iv  Preface. 

their  labors.  Every  systematic  treatise  on  any  department  of  jurispru- 
dence facilitates  the  acquisition  of  a  knowledge  of  the  science.  It  is, 
however,  to  the  adjudged  cases  that  we  are  to  look  for  the  authoritative 
exposition  of  the  law. 

But  though  the  present  work  is  adapted  more  particularly  to  the  pres- 
ent state  of  the  law  in  New-York,  it  is  far  from  being  a  merely  local 
work.  The  general  principles  of  Equity  Jurisprudence  are  presumed  to 
be  the  same  in  substance  in  most  of  the  states.  The  diversities  arising 
from  local  legislation,  or  from  usage  in  other  states,  will  be  readily  dis- 
covered by  those  practicing  in  their  courts.  The  work  will  be  less  likely 
to  mislead  the  reader,  than  if  it  had  attempted  to  describe  the  exact 
state  of  the  law  in  each  of  the  states.  Such  a  task  cannot  be  success- 
fully accomplished  by  any  one  writer. 

No  one  can  be  more  sensible  of  the  imperfections  of  the  present  work 
than  the  author.  The  variety  of  the  topics  discussed,  the  complicated 
nature  of  many  of  them,  and  the  occasional  conflict  of  decisions  with 
respect  to  others,  render  the  task  of  constructing  a  consistent  system, 
laborious  in  the  extreme.  To  settle  points  about  which  learned  judges 
continue  to  differ,  is  no  easy  matter.  In  some  few  instances  I  have 
merely  stated  the  arguments  and  authorities  on  each  side,  and  left  the 
learned  reader  to  draw  his  own  conclusions.  In  most  cases,  however,  after 
stating  the  points  in  dispute,  I  have  indicated  my  own  opinion,  in  con- 
formity to  what  I  conceived  to  be  the  weight  of  authority,  or  the  general 
analogy  of  the  law.  It  will  not  be  surprising  if  some  of  these  opinions 
should  prove  to  be  erroneous. 

It  is  not,  perhaps,  possible  to  fix  the  line  which  separates  Equity  Juris- 
prudence from  that  which  is  generally  administered  by  Courts  at  Com- 
mon Law.  The  tendency  of  late  has  been  to  abrogate  the  distinction 
which  formerly  prevailed  between  courts  of  law  and  courts  of  equity.  I 
have  brought  under  review  most  of  the  subjects  which,  in  this  state,  have 
been  usually  discussed  and  adjudicated  in  courts  of  equity,  notwithstand- 
ing some  of  them  in  England  and  elsewhere  belong  to  a  different  forum ; 
and  notwithstanding  all  of  them  are  now  administered  here  by  the  same 
tribunal.  In  the  hope  that  the  work  may  serve,  in  some  measure,  to  as- 
sist the  young  and  inexperienced  in  acquiring  a  knowledge  of  this  branch 
of  our  jurisprudence,  and  lessen  the  labors  of  the  more  advanced  prac- 
titioner, I  submit  it  with  diffidence  to  the  scrutiny  and  candor  of  the 
profession. 

Saratoga  Springs,  May,  1855. 


TABLE  OF   CONTENTS. 


INTRODUCTION. 

SECTION  I. 

Page, 
Equity,  a  branch  of  Jurisprudence  distinct  from  Law,  though  not  admin- 
istered by  a  tribunal  exclusively  devoted  to  it;  with  a  Sketch  of  the 
recent  changes  in  New- York,         ...  ...       33 

SECTION  II. 
General  Nature  of  Equity,  .....  .37 

SECTION  III. 
(j-eneral  View  of  the  Maxims  of  Equity,  and  distribution  of  the  subject,         4i 


CHAPTER  I. 

OF  THE  RELIEF  AFFORDED  BY  EQUITY  IN  CASES  OF  ACCIDENT  AND  MISTAKE 

SECTION  I. 
Of  Accident, 51 

SECTION  II. 

Of  Mistake, 59 

(1.)  Mistake  of  Law,  ........       59 

(2.)  Mistake  of  Fact,  69 

C  r) 


ri 


Table  of  'Contexts. 


CHAPTER  II. 


OF  ACCOUNT 

(i-: 

General  View,        . 

(2-: 

Appropriation  of  Payments, 

(3.: 

Lien,             . 

(K 

Contribution, 

(s-: 

Exoneration, 

(6. 

)  Party  Wall, 

(- 

i  Division  Fences, 

(s.; 

Insurance, 

(9.; 

Average, 

(io.; 

Paying  off  Incumbrances, 

(ii.] 

Apportionment,  Eviction, 

(i2.; 

Rents  and  Profits, 

(is: 

Charge  and  Discharge, 

85 

QO 

105 
106 
109 
115 
116 
119 
121 
125 
I'jTi 
133 
139 


CHAPTER   III. 

OF  FRAUD. 

SECTION  I. 
Of  Actual  Fraud, 145 

SECTION  II. 

Of  Transactions  between  Parties  standing  in  confidential  relations  to  each 

other;  and  of  undue  influence,       .         .         .         .         ,         .         .169 

SECTION  III. 

Of  Transactions  where  an  unconscientious  advantage  has  been  taken  of 

the  mental  weakness  of  a  Party,  ....  .194 


SECTION  IV. 
Of  Constructive  or  Implied  Fraud, 


209 


CHAPTER   IV. 


OF   SPECIFIC;  PERFORMANCE ;  CORRECTION    AXD    RE-EXECUTION  OF  AGREEMENTS ;  AND 

OF  COMPENSATION. 


SECTION  I. 


Of  Specific  Performance, 


.     26? 


Table  of  Cosiixrs.  vu 

SECTION  n. 
Of  the  Re-execution  and  Correction  of  Agreements,       .  .         .300 

SECTION  m. 
Of  Rescission,  sCancellation  and  the  Delivering  up  of  Agreements,  .     302 

SECTION  IV. 
Of  Compensation  and  Damages,  .         .         .  308 


CHAPTER  V. 

OP  BILLS  OP  INTERPLEADER,   BILLS   OP  PEACE,   BILLS    OP   QUIA   TIMET,  AND  BILLS  TO 

MARSHAL  SECURITIES. 

SECTION  L 
Of  Interpleader, 313 

SECTION  II. 
Of  Bills  of  Peace, 323 

SECTION  III. 
Of  Bills  Quia  Timet,  ....  ....     328 

SECTION  IV. 
0."  Bilk  to  Marshal  Securities,  337 


CHAPTER  VI. 

OP   INJUNCTIONS. 

SECTION  I. 
General  View  of  the  subject,        .         .         .         .         .         .         .        .341 

Section  it. 

Of  Injunctions  to  restrain  the  Proceedings  in  other  Courts,  .         .     345 

SECTION  III. 

Of  Injunctions  to  restrain  the  indorsement  or  negotiation  of  Commercial 
Paper ;  the  sailing  of  Ships  ;  the  transfer  of  Stock ;  the  alienation  of 
Land  and  of  Specific  Chattel?,        .....  353 


viii  Table  of  Contents. 

SECTION  IY 

Of  Injunctions  to  restrain  the  wasting  of  Assets,  or  other  Property,  pending 
the  Litigation ;  restraining  Trustees  from  assigning ;  and  a  Parent 
or  Guardian  from  removing  the  Child  out  of  the  jurisdiction,   .         .     367 

SECTION  Y. 
Of  Injunctions  to  prevent  "Waste  and  Trespass, 369 

SECTION  YI. 

Of  Injunctions  to  restrain  the  infringement  of  Patents,  the  violation  of 

Copyrights,  and  the  unauthorized  publication  of  Letters  and  the  like,     383 

SECTION  YII. 

Of  Injunctions  to  suppress  the  continuance  of  Public  or  Private  Nuisances, 

Purprestures  and  the  like, 388 

SECTION  Y1TL 

Of  Injunctions  to  restrain  the  multiplicity  of  Suits  ;  to  quiet  Possessions  : 
to  repress  Yexatious  Litigation ;  to  protect  Corporations  in  the  en- 
joyment of  their  Franchises  ;  and  in  Miscellaneous  Cases,         .         .401 


CHAPTER  YII. 

OF  USES  AND  TRUSTS. 

SECTION  I. 

General  view  of  Uses  and  Trusts  before,  and  as  modified  by  the  Revised 

Statutes,       .    7\ 409 

SECTION  IL 

Of  Mortgages,  both  of  Real  and  Personal  Property ;  Equitable  Mortgages; 

Lien  for  the  Purchase  Money ;  Pledges  and  Hypothecation,  .     426 

SECTION  III. 
Of  Assignments,  Legal  and  Equitable, 459 

SECTION  IY. 
Of  Marriage  Settlements  and  Executory  Contracts  for  such  Settlements,       472 

SECTION  Y. 
Of  Wills  and  the  Trusts  therein ;  and  of  the  Rules  of  Construction  thereof,     483 


Table  of  Contents.  ix 

SECTION  VI.  ' 

Of  Legacies,  and  the  grounds  of  the  jurisdiction  of  Courts  of  Equity 
over  the  same;  and  of  the  different  kinds  of  Legacies,  whether  Gen- 
eral, Demonstrative  or  Specific;  and  of  Ademption  of  Legacies,       .     49S 

SECTION  VII. 
Of  Vested  and  Contingent  Legacies ;  and  of  Lapse,       ....     507 

SECTION  VIII. 
Of  Legacies,  Absolute  and  Conditional,         ......     522 

SECTION  IX. 
Of  Cumulative  Legacies,      .         .         .         .         .         .         .         .         .539 

SECTION  X. 
Of  Satisfaction,  ....  .  .  542 

SECTION  XI. 
Of  Election, 544 

SECTION  XII. 
Of  Donatio  Causa  Mortis,  .         .  ....  553 

SECTION  XIII. 
Of  Abatement  of  Legacies,  and  the  Person  to  -whom  payable,  556 

SECTION  XIV. 
Of  Administration  and  Marshaling  Assets,  .         .  _  .561 

SECTION  XV. 
Of  Charities, .     569 

SECTION  XVI. 
Of  Constructive  or  Implied  Trusts,        ...  ,  .     598 

SECTION  XVII. 

Of  the  Office  and  Duty  of  Trustees,  and  the  Rights  of  Cestui  que  Trusts,        611 
Eq.  Jib.  2 


x  Table  of  Contents. 

CHAPTER  VIII. 

OF  THE  PROTECTION  AFFORDED  BY  COURTS   OF  EQUITY  TO   PERSONS  LABORING  UNDER 

DISABILITY. 

SECTION    I. 

Of  Infants, 617 

SECTION  II. 
Of  Married  Women  ;  and  herein,  of  Divorce,  Alimony,  &c.  .         .     634 

SECTION  III. 

Of  Idiots,  Lunatics,  Persons  of  Unsound  Mind,  and  Persons  incapable  of 

conducting  their  own  affairs,  in  consequence  of  habitual  drunkenness,     671 


CHAPTER  IX. 

OF  EQUITY  JURISDICTION  IN  CASES  OF  DOWER  AND  PARTITION. 

SECTION  I. 
Of  Dower, 694 

SECTION  II. 
Of  Partition, ....     699 


CHAPTER  X. 

OF  PARTNERSHIP, 706 


CHAPTER  XL 

OF  CORPORATIONS;  AND  OF  PROCEEDINGS  AGAINST  THEM  IN  EQUITY. 
SECTION   I. 

Of  Corporations ;  and  of  Proceedings  against  them  in  Equity,  independ- 
ently of  the  Ptevised  Statutes, 729 

SECTION  II. 
Of  Proceedings  against  Corporations  in  Equity  under  the  Revised  Statutes,    745 


TABLE    OF    CASES. 


A 

Angel  v.  Hadden, 
Anonymous, 

322 
472 

A  oernethy  v.  Hutchinson,     . 

407 

Anstice  v.  Brown, 

601 

Acker  v.  Phoenix, 

263 

Androvi  v.  Poilblanc,   . 

508 

Ackerman  v.  Emott,     . 

188, 

613 

Apthorpe  v.  Comstock, 

361 

Ackley  v.  Finch, 

457 

Arthur  v.  Arthur, 

*63,  6S 

,  80 

Adams  v.  S.  &  W.  Railroad, 

406 

v.  Prichard, 

87 

v.  Pierce, 

636 

Arden  v.  Pattison, 

.'     163, 

174 

Adair  v.  Shaw,     . 

561, 

569 

v.  Patterson, 

214 

v.  Weare, 

265 

Ardesoif  v.  Bennet, 

545 

v.  Wilson, 

286 

Armstrong  v.  Gilchrist, 

4£ 

,  49 

Adderly  v.  Dixon, 

274, 

279 

Arnold  v.  Johnson, 

101 

v.  Storm, 

752 

v.  Patrick, 

.'     124, 

443 

Addison  v.  Mascall, 

197 

Archer  v.  Mosse, 

246 

Adsit  v.  Adsit, 

547, 

550 

Arnot  v.  Post, 

442 

Ainslie  v.  Medlycott,    . 

150 

Arnhout,  Matter  of, 

682,  683, 

688 

Aislahie  v.  Rice, 

526, 

528 

Arundell  v.  Phipps, 

244 

Albany  City  Bank  v.  Scherme 

•horn 

,     ■ 

334 

Aston  v.  Aston,    . 

139,  381, 

525 

A  bany  Fire  Ins.  Co.  v.  Bay, 

652 

v.  Heron, 

.     334, 

335 

A  Ian  v.  Backhouse,     . 

126 

Astor  v.  Hovt, 

.     379, 

43 

v.  Smith,     . 

694 

v.  Miller,    . 

.     379, 

433 

AJcock  v.  Sparhawk,    . 

489 

Ashton  v.  Ashton, 

.    503, 

505 

A'derson,  Ex  parte, 

463 

Ashburner  v.  McGuire, 

505 

A  iridge  v.  Cooper, 

562 

Astley  v.  Astley, 

657 

v.  Reynolds,  . 

434 

Atkins  v.  Tredgold, 

191 

Alrlrid's  case, 

388 

Atkinson  v.  Henshaw,  . 

367 

Allen  v.  Addington 

97 

,  98 

v.  Manks,      .     31 

3,  314,  315, 

319 

v.  Cullen,    . 

540 

Atkins  v.  Hicocks, 

524 

v.  Culver,   , 

149, 

150 

Audley  v.  Audley, 

444 

v.  Blanchard, 

706 

Austin  v.  Bell, 

467 

v.  Dykers,  . 

459 

Att'y  Gen.  v.  Cleaver,   . 

400 

v.  Macpherson,    . 

, 

140 

v.  Clark, 

581 

v.  Pray, 

548 

v.  Cohoes  Co. 

398 

v.  Scwall,    . 

7:;3 

v.  Cullin, 

574 

Alexander  v.  Patten,     . 

101 

v.  Forbes,     . 

v.  Pendleton, 

249 

826, 

608 

v.  Fowler,     . 

.-,7i) 

Alstan  v.  Confer,    . 

100 

v.  Guise, 

680 

Althorpe  v.  Comstock, 

160, 

304 

v.  Milner,     . 

.'    299, 

514 

Agar  v.  Regent's  Canal  Co.  . 

405 

v.  Newcomb, 

570 

American  Home  Missionary  So.  v. 

Wad- 

v.  Parnither, 

690 

ham,        .... 

640, 

642 

643 

v.  Pearson,  . 

689 

Amoakeag  Man.  Co.  v.  Spear, 

403 

404 

v.  Richards, 

■ 

Anau  v.'Merritt,   . 

283 

v.  Robbins,  . 

.'    530, 

557 

Anderson  v.  Van  Allen, 

460 

472 

v.  Shore, 

588 

v.  Wilkinson, 

320 

v.  Siderfin, 

!    580, 

590 

Andrew  v.  N.  Y.  Bible  and  Pr 

Book 

v.  Stewart,  . 

57  4 

Soc.      .        513,  576,  577, 

578, 

580 

598 

v.  Sutton,     . 

498 

Andrews,  Matter  of, 

on:; 

624 

v.  Tyndall,   . 

563 

Antiubus  v.  Davidson, 

109 

v.  Utica  Ins.  Co. 

7,  400 

711 

(xi) 


Table  of  Cases. 


Att'y  Gen.  v.  Vernan, 

165 

Atwood  v.  Small, 

149 

Averill  v.  Loucke, 

338, 

712 

v.  Wade, 

338 

Ayers  v.  Hawkins, 

94, 

97 

v.  Meth.  Church,    573,  57 

1,  577, 

580 

Ayliffe  v.  Murray, 

172; 

184 

Avmar  v.  Bell, 

433 

v.  Roff,     . 

6:31 

B 

Babcock  v.  Booth, 

237, 

240 

Bacon  v.  Bronson, 

149 

Back  v.  Stacy, 

396 

Badgley  v.  Bruce, 

'.    69 

5,  697, 

698 

Badrick  v.  Stevens, 

50.5 

Bagswell  v.  Bancker, 

752 

v.  Burton, 

458 

V.  Ley, 

512 

Bagshaw  v.  Silencer, 

475 

Bailey  v.  Ehens,   . 

48G 

v.  Inglee, 

472 

Baine  v.  Williams, 

98, 

101 

Baines  v.  Baker, 

396, 

389 

Baird  v.  Baird,     . 

208 

v.  Watkins, 

712 

Baker  v.  Briggs, 

114 

v.  Chase,  . 

696 

v.  Fales, 

593 

v.  Haltzapffell, 

137 

v.  Hoag,    . 

123, 

124 

v.  Lorillard 

029 

v.  Paine,    . 

74 

v.  Riddle,  . 

143 

v.  Stackpole, 

?2,  93, 

102 

v.  Thrasher, 

432 

v.  White, 

210, 

214 

v.  Whiting, 

189 

Bakewell  v.  Ellsworth, 

720 

Balfour  v.  Weston, 

57, 

137 

Ball  v.  Coggs, 

275 

v.  Coutts, 

634, 

636 

v.  Harris, 

486, 

487 

v.  Lively, 

149 

v.  Montgomery, 

480, 

481 

v.  Oliver, 

367 

v.  Storie, 

79 

Baldwin  v.  Johnson, 

289, 

292 

v.  Salter, 

712 

Ballis  v.  Street,    . 

472 

Ballou  v.  Earnley, 

368 

Balman  v.  Shore, 

711 

Banks  v.  Sutton, 

419 

Banner  v.  Cormac, 

78 

Bancroft  v.  Dumas, 

, 

101 

Bangs  v.  Strong, 

113 

Bank  of  Salina  v.  Bahcock, 

t                m 

257 

Bank  of  Penn.  v.  Wise, 

129 

Bank  of  Sandusky  v.  Scoville, 

257 

Bank  of  Utica  v.  Finch, 

436, 

448 

Bank  of  Rochester  v.  Emerson, 

452 

Bank  U.  S.  v.  Beverly, 

487 

v.  Davis,    . 

250, 

609 

v.  Houseman,     . 

, 

233 

Bnnks  v.  Phelan, 

, 

583 

B<;   'ist  Ch.  of  Hartford  v.  Wether 

ell,    . 

583 

Baptist  Association  v. 

Hart 

571 

Barber  v.  Barber, 

v.  Rose, 
Barclav  v.  Wainwright 
Bard  v.  Fort, 
Barker  v.  Dacie,  . 

v.  Elking, 

v.  May,  . 
Barker,  Matter  of, 
Barrow  v.  Rhinelander 

v.  Paxton. 
Barnsley  v.  Powell, 
Barney  v.  Griffin, 
Barnum  v.  Hempstead, 
Barnardiston  v.  Lingwood, 
Barr  v.  Lapsley, 
Barnes  v.  Perine, 

v.  Racster, 
Barnett  v.  AVeston, 
Barrie  v.  Davie,  . 
Bartlett  v.  Nye,    . 

v.  King, 
Barlow  v.  Grant, 
Barton  v.  Barton, 
Bash  v.  Dalway,  . 
Baskerville  v.  Parkerville, 
Bath  &  Montague's  case, 
Batten  v.  Earnley, 
Batterman  v.  Price, 
Bates  v.  Schraeder, 
Batty  v.  Lloyd,    . 
Bayard  v.  Hoffman, 
Baylis  v.  Church, 
Baxter  v.  Hozier, 
Beach  v.  Bradley, 
Beals  v.  Guernsey, 
Beard  v.  Linthicum, 
Beaumont  v.  Fell, 
Beaufort  v.  Berty, 
Beaty  v.  Kerts, 
Beck  v.  Stephani, 
Bedell  v.  Hoffman, 
Beebe  v.  Beebe, 
Beecher  v.  Beechcr, 
Beeckman  v.  Astor, 
Beekman  v.  Bond, 
v.  Frost, 
Belcher  v.  Belcher, 
Belden  v.  Sevmour, 
Bell  v.  Lock, 
v.  Hull, 

v.  Mayor  of  N.  Y 
v.  Phyn, 
Bellasis  v.  Uthwatt, 
Bennett,  Ex  parte, 
Bennett  v.  Robinson, 

v.  Smith, 

v.  Yade, 
Benedict  v.  Lynch, 
v.  Gilman, 
Benough  v.  Walker, 
Benson  v.  Benson, 
Benyon  v.  Benyon, 
Besity  v.  Laurence, 
Berry  v.  Headlington, 
v.  Mut.  Ins.  Co. 
Bevan  v.  Lewis, 
Bibb  v.  Smith,   . 
Bilbie  v.  Lumlev, 


C61.  664 
.  354 
.  54C 

.  421 

.   90 

.  161 

263 

.  677 

.  443 

243,  456,  457 

160,  356 

246 

247 

260 

27G 

413 

348 

435 

433 

593 

580,  593 

627 

531 

271 

475 

1/3 

330 

si:  4 

312 

230 

4b'3 

82 

87 

69] 

241 

267 

81,  492 

924 

583 

315 

313.  320,  321 

657 

501 

450 

243 

45,  46,  249,  254,  435 

147 

603 

207,  402 

406 

696 

711 

544 

187 

533 

263 

195,  G71 

292,  295 

448,  449 

496 

299 

640 


46,  4? 


5'.) 


490 
441 
722 
174 


Table  of  Cases. 


Kni 


:ht 


Bill  v.  Kinaston, 
Billenger  v.  Ketts,         . 
Billingsley  v.  Critcnett, 
Billon'v.  Hyde, 
Bingham  v.  Binsham, 
Birdsley  v.  Hewlett,      . 
Birdsall  v.  Hewlett, 
Bhkwood  v.  Aniss, 
Bishop  v.-Pidcock, 
Bishop  of  Winchester  v 
Bissell  v.  Bissell, 

v.  Hopkins, 
Blair,  Matter  of, 
Blackstone  Bank  v.  Hill, 
Black  v.  Schoales, 
Blackford  v.  Christian, 
Blackburn  v.  Granger, 
Blade  v.  Noland, 
Blake  v.  Hungerford,   . 
v.Leigh, 
v.  Nutter, 
Blanchard  v.  Blood,      . 

v.  Nestle, 
Bland  v.  Winter,  . 
Blinn  v.  Chester, 
Bliss  v.  Collier,     . 
Bligh  v.  Lord  Darnley, 
Bloom  v.  Burdick, 
Blood  v.  Humphrey,     . 
Blunt  v.  Aiken, 
BlundeU  v.  Brctarph,    . 
Boardman  v.  Halliday, 
Body  v.  Taylor, 
Bodinham  v.  Purchase, 
Bodine  v.  Edwards,       . 
Bo^ardus  v.  Clark,        . 

v.  Trinity  Church 
Bolger  v.  Markell, 
Bolifuer  v.  Weyman, 
Bolt  v.  Rogers,     . 
Bond  v.  Hopkins, 
Bonaffe  v.  Woodberry, 
Bonethorn  v.  Hockmore, 
Bonner  v.  Bonner, 
Bond,  Matter  of, 
Boody  v.  United  States, 
Boom  v.  City  of  Utica, 
Booth  v.  Booth, 
Bor  v.  Bor, 

Bordman  v.  Osborn,      . 
Bossanquet  v.  Wray,    . 
Bosquet  v.  Huger, 
Bostwick,  Matter  of,      . 
Bostwick  v.  Adams, 
Bosvill  v  Brandcr, 
Bottsford  v.  Burr, 
Bouton  v.  City  of  Brooklv 
Boutbec  v.  Stubbs, 
Bovery  v.  Smith, 
Bowden  v.  M'Leod, 
Bowers  v.  Lease, 
v.  Smith, 
v.  Strathmore, 
Boyd  v.  Dunlap, 
v.  McLean, 
v.  Murray, 
v.  Vanderkemp,  . 
Boynton  v.  Hubbard,   . 


241, 


46,  255 
491,  522 
160,  299,  3S6 
478,  479,  649 
124,  443,  444 
.  463 
.  523,  534 
.  502 
.   81,  492 
.  101 
.  379,  447 
388,  391,  392 


198, 


3301  Brace  v.  Duchess  of  Maryborough, 
297   Bradhurst  v.  Bradhurst, 
629  Bradish  v.  Gee,     . 
88  Bradish  v.  Gibbs, 
70  Bradley  v.  Bosley, 
508,  519  v.  Root, 

489,  490,518  y.  Pixoto,         . 

113  Bradford  v.  Haynes,      . 
71    151  Bradwin  v.  Harpur,      . 

'     91   Brady  v.  Hill,      • 
043    468  v.  Waldron, 

'  665  v.  Weeks, 

688  Bramwell  v.  Holcomb, 

100  Brandreth  v.  Lance,      . 

101  Brandon  v.  Robinson, 
202  Brant  v.  Gelston, 
443  Braker  v.  Devereaux,   . 

54  Brasher  v.  Bentley, 

46  v«  G<ratz>  •        U,    ,,  *  A 

;     621 1  Brasher's  Executors  v.  A  an  Cortland, 
712  I  Braybrook  v.  I'nskip,    " 
472  479,  635  Brazier  v.  Bryant, 
196'  90l'  675  Bree  v.  Holbeck, 
'  108  Breed  v.  Pratt,     . 

101  i  Brewer  v.  Knapp, 
127  Brewster  v.  Powers,      . 

569  Brice  v.  Brice, 
560  I  Bridgen  v.  Carhart,      . 
644  Bridges  v.  Abbott, 
392  v-  Kuburn, 

5g  v.  Morrison,     . 

245  Briggsv.  Dorr,     . 
165  v-  Hosford, 

102  v.  Kouns,  . 

599  v-  Williams, 

146  Bri2  Sarah  Ann, 
574  I  Brisht  v.  Boyd, 
514  Brinkerhoof  v.  Brown, 
143  v.  Marvin, 

304  Brisbane  v.  Davis, 
40   Bristol  v.  Hungerford, 
101  Bromley  v.  Holland,     . 
446  Brookfield  v.  Williams, 
569  I  Broom  v.  Broom, 
6"7   Brooke  v.  Enderley,     • 
101  v.  Gaily  .        • 

398  Brown  v.  Argall, 
v.  Bement, 
v.  Bonner, 
v.  Clark, 
v.  Davis, 
v.  Edington, 
v.  Elton,     . 
v.  Fisher, 
v.  Haff,     • 

v.  Mayor  of  Brooklyn, 
v.  Peck,     . 
v.  Quilter, 
v.  Rickets, 
v.  Story,    . 
v.  Woodworth, 
557   Brockenridge  v.  Duncan,      - 
381   Brock  way  v.  Wells, 
214  Broderic  v.  Broderic,    . 
74    416    600  iBromley  v.  Holland,     . 

336  v-  Jefters, 

098    302,  309   Brooks  v.  Marbury,      . 
'  181    211  [Bronbon  v.  Cahil  1, 


51? 


20 


416, 


362.  387,  401 
'   .  643 
•  475 
.  416 
.  331 
292 
691 
419 
.  101 
.  153 
.  199 
.  101 
.  601,  602 
78,  189,  251 
.   46 
.  511 
373 
.  540 
.  460 
.  507 
.  320 
.  100 
.  150 
.  312 
.  238 
352,  436,  456 
.   62 
.   46 
.   52,  360 
75 
.  711,  712 
.   92,  102 
.  380 
•  715 
.  456,  457 
.   80 
.  636,  639 
.  359 
.  156 
.  501,  636 
.  198,  674 
.  290 
.  397 
.  528 
.  137 
.  172 
.  193 
.  391 
.  4'.  16 
428,  448 
148,  168 
.  360 
.  267 
.  466 
267 


Table  of  Cases. 


Brownell  v.  Curtis, 

v.  Hawkins,   . ' 
Erowning  v.  Morris, 
v.  Pettis, 
Brudnell  v.  Boughton, 
13  ruses,  Matter  of, 
Brush  v.  Ware,     . 
Brydges  v.  Watton, 
Bryan  v.  Knickerbocker, 
Buchan  v.  Sumner, 

438,  439,  490, 
Buckle  v.  Mitchell, 
BufFar  v.  Bradford, 
Buffalo  v.  Buffalo, 
Bull  v.  Church,    . 

v.  Storie, 
Bulkley  v.  Stare, 
Bumpton,  Ex  parte, 
Bunn  v.  Biker,     . 
Bunell  v.  Philips, 
Burckle  v.  Eckart, 
Burdick  v.  M'Vanner, 
Burbank  v.  Whitney, 
Burden  v.  Dean, 
Burgess  v.  Smith, 

v.  Bobinson, 
v.  Wheate, 
Burke,  Matter  of, 
Burnberry's  case, 
Burnett  v.  Dennison, 
Burn  v.  Carvilho, 
Burleton  v.  Humphrey 
Burrall  v.  Schell, 
Burr  v.  Buit,     .         74,  442 
Burr,  Matter  of, 
Burr  v.  Yeeder,   . 
Burtis  v.  Burtis,  . 
Burrall  v.  Jewett, 
Bussey  v.  Grant,  . 
Butcher  v.  Butcher, 
Butler  v.  Butler, 

v.  Freeman, 

v.  Lewis, 

v.  Miller, 
Byren  v.  Romaini, 
Byrne  v.  Van  Hoesen, 

C 

Cadrogan  v.  Kennett,    . 

Ca<ie  v.  Russell,    . 

Carries  v.  Chabert, 

Caldwell  v.  Wentworth, 
v.  Shipherd,    . 

Calcraft  v.  Roebuck, 

Calvery  v.  Williams, 

Calloway  v.  Langhorne, 

Can-foot,  Matter  of, 

Campbell  v.  Frink. 

v.  Messier,     . 
v.  Morrison, 
v.  Macomb,  . 
v.  Scott, 
v.  Walker,     . 

Camp  v.  Pulvcr, 

Canal  Com.  v.  The  People 

Cann  v.  Cann, 

Candler  v.  Petit, 


337 
456 
224 
239 
488 
688 
165 
536 
239,  424 


711,  712,  720 
.  303 
.  511 
.  174 
.  551 
.  73 
.  164 
.  689 
.  225 
.  125 

709,  710 
.  457 
.  593 
.  636 
.  348 
.  534 
40,  47 
.  627 
.  199 

442,  447 
.  464 
.  525 

514,  517 
657,  668,  671 

199,  690 

446,  448 
.  652 
.  384 
.  98 
)7,  226,  302 
32,  626,  627 
.  360 
.  438 

243,  457 
.  283 
.  621 


226,  235 

56 
125 

97 
174 
296 
296 
490 
686 

82 
116 
353 
452 
385 
187 
153 
574 

68 
238 


Canfield  v.  Munger, 

; 

462 

v.  Morgan, 

321 

Cary  v.  Bertie, 

57, 

525, 

526 

Carey  v.  Milliken,        .        ; 

37, 

343 

Carson  v.  Hill, 

101 

Carpenter  v.  King, 

114 

Carter  v.  Boehm, 

151, 

16' 

Carrick  v.  Vickery, 

191 

Carpenter  v.  Brown, 

296, 

297 

Carleton  v.  Earl  of  Dorset,   . 

480, 

481 

Case  v.  Abeel, 

708, 

718 

Cash  v.  Giles, 

157 

Casborne  v.  Barnham,  . 

171 

Casey  v.  Holmes, 

267 

Cathcart  v.  Robinson,  . 

267 

Catlin  v.  Valentine,       .        ; 

391 

Caw  v.  Robertson, 

524 

Chamness  v.  Cruch  field, 

55 

Champlin  v.  Laytin, 

59, 

60, 

63 

Champion  v.  Brown,    108,  567 

,  610 

,771 

298 

v.  Bostwick, 

709 

Champlain  v.  Haight, 

494 

v.  The  People,    . 

208 

Champerson  v.  Gubbs, 

136 

Chappedelaine  v.  Dukemaux, 

143 

Chapman  v.  Albany  and  S.  Railroad,    . 

409 

v.  Koops, 

. 

74 

v.  Murch, 

149 

Charleston  Ins.  Co.  v.  Potter, 

168 

Chaworth  v.  Beach, 

504 

Chandos  v.  Talbot,       .     508, 

513, 

519 

521 

Charles  River  Bridge  v.  Warren  Bridge, 

394 

Chandler  v.  Thompson, 

295 

Charter  v.  Stevens, 

458 

Chancey's  case,    . 

543 

Chamberlain  v.  Hewson, 

559 

Chapin  v.  Weed,  . 

606 

Chalmers  v.  Goodwin, 

627 

Charitable  Corporations  v.  Sutton, 

752 

Chase  v.  Barnett, 

709 

Cheeney's  case,    . 

81 

Cheesborough  v.  Millard, 

111, 

118 

337 

Chesterfield  v.  Jansen, 

148 

Chesterman  v.  Gardner, 

251 

Chesden  v.  Lorens, 

68 

Ching  v.  Ching,   . 

77 

f'liitry  v.  Naish, 

U01 

Child  v.  Danbidge, 

210 

v.  Morrin,   . 

501 

Chilcott  v.  Trimble,      . 

626 

Christie  v.  Bogardus, 

352 

353 

v.  Craig, 

362 

Church  v.  Bull, 

549 

Christie,  Matter  of, 

682 

City  of  London  v.  Richmond, 

135 

C.  and  K.  Turnpike  v.  M'Connolly, 

. 

259 

City  of  London  v.  Nash, 

. 

266 

City  Bank  v.  Bangs,    . 

322 

City  of  Cincinnati  v.  White, 

583 

Clark  v.  Brown, 

56 

v.  Cuming, 

117 

v.  Dutcher, 

B 

63 

v.  Hull,      . 

124 

v.  Lawyer, 

. 

146 

v.  Fisher, 

146 

675 

v.  White,    . 

149 

v.  Price, 

277 

v.  Hall,       . 

301 

443 

Table  of  Cases. 


XT 


Clark  v.  Berkley, 

v.  Clark,    . 

v.  Henry, 

v.  Mauran, 

v.  Parker, 
Clarkson  v.  Hanway, 
Classon  v.  Classon, 
v.  Morris, 
Clason  v.  Bailey, 
Clay,  Ex  parte,     . 
Clavering  v.  C layering, 

v.  Westley, 
Claverly  v.  Williams, 
Clayton's  case, 
Cleaves  v.  Spurling, 
Clement  v.  Brush, 
Clever  v.  Willoughby, 
Clifford  v.  Beaumont, 

v.  Brooke, 
Clinman  v.  Cook, 
Clitherell  v.  Ogilvie, 
Clows  v.  Dickinson, 

v.  Higginson, 
Clute  v.  Robinson, 
Coates  v.  Cheever, 

v.  Holebrook, 
Cockburn  v.  Thompson 
Cockerell  v.  Barber, 

v.  Cholmeley 
Cockran  v.  Webb, 
Codd  v.  Codd,      . 
Coddington  v.  Bay, 
Coffin  v.  Coffin,    . 

v.  Cooper, 
Coggeshall  v.  Pelton, 
Coles  v.  Brown,    . 
v.  Coles, 
v.  Trecothick, 
Cole  v.  Gibson,     . 
v.  Robins,     . 
v.  Savage,    . 
v.  Wendell,  . 
Coleman  v.  Coleman, 
Colegrove  v.  Horton, 
Collier's  case, 
Collins  v.  Barrow, 

v.  Collins, 

v.  Tony, 
Colson  v.  Thompson, 
Colpoys  v.  Colpoys, 
Colt  v.  Lasnier, 
Colton  v.  Ross, 
Compton  v.  Jones, 
Conrad  v.  Williams, 
Conro  v.  Port  Henry  Iron  Co, 
48,  90 
Connelly  v.  Pierce, 
Conolly  v.  Pardon, 
Constantine  v.  Constantine, 
Cook  v.  Clayworth, 

v.  Manners, 
Cook,  Ex  parte,   . 
Cookson  v.  Cookson, 
Cooper  v.  Remsen, 

v.  Stower, 

v.  Whitney, 
Cooper,  Matter  of, 
Coombo,  Ex  parte, 


178, 


.  526 
332,  625 
428,  429 
.  463 
.  525 
.  203 
;  704 
:  111 
.  267 
.  727 
.  372 
.  136 
70,  73 
101,  102 
.  521 
.  717 
.  155 
.  215 
.  309 
76,  284 
.  266 
.  119 
.  288 
.  290 
.  372 
.  403 
.  108 
.  536 
64,  83 
354,  356 
.  667 
257,  359 
.  372 
.  290 
581,  588 
.  289 
433,  437,  710 
203,  265,  284 
208 
200 
221 
498 
502 
368 
486 
146 
1,  512,  667 
433,  437 
.  291 
.  497 
.  569 
.  146 
.  462 
.  214 

108,  327,  401 
.  296 
491,  492 
493,  496 
200,  303 
.  455 
.  727 
.  711 
528,  529 
.  370 
.  432 
.  624 
.  441 


484 


Coomis  v.  Elling, 

474 

Consequa  v.  Fanning,  . 

142 

Conyers  v.  Lord  Abergaveny, 

324 

Copis  v.  Middleton, 

lib, 

227 

Corbitz  v.  Poelnitz, 

651 

Corbyn  v.  French, 

510 

Corey  v.  Corey, 

200 

Cortelou  v.  Lansing,     . 

456 

Corlies  v.  Cummings,  . 

125 

Corning  v.  Lowrey, 

392 

v.  McCullough, 

752 

v.  Troy  Iron  Co. 

343, 

344 

Corning,  Ex  parte, 

441 

Corneforth  v.  Geer, 

77 

Corporation  of  Carlisle  v.  Wilson, 

91 

Corwin  v.  Merritt, 

560 

Coster  v.  Lorillard, 

477 

Cottington  v.  Fletcher, 

414 

Cooth  v.  Jackson, 

58 

286 

Countess  of  Lincoln  v.  The  Duke  of  New- 

castle, 

475 

498 

Plymouth  v.  Throgmorton, 

131 

Strathmore  v.  Bowers, 

480 

Coutan  v.  Schuyler, 

555 

v.  Williams, 

319 

Coventry  v.  Earl  of  Coventry, 

299 

Couch  v.  Delaplaine,    . 

461 

v.  Ulster  and  D.  Turnp.  Co 

. 

362 

Covenhoven  v.  Shuler,     e330,  33 

2,  490, 

491 

Cowell  v.  Price,    . 

163 

Cowles  v.  Woodruff, 

47 

Cowper  v.  Clerk, 

325 

v.  Cowper, 

.      37, 

490 

v.  Scott, 

545 

Cowperthwaite  v.  Sheffield, 

463, 

464 

Cox  v.  Smith,       .        . 

704 

Cozine  v.  Graham, 

282 

Crabtree  v.  Bramble,    . 

47, 

299 

Crafts  v.  Asp  in  wall, 

455 

Craig  v.  Craig, 

553, 

555 

v.  Leslie,     .       47,  27 

L,  29 

E>,  300, 

601 

Cram  v.  Hendricks, 

223, 

224 

v.  Mitchell, 

GU-3, 

612 

Cramer  v.  Higgins, 

100 

Cranmer,  Matter  of, 

077 

Cranmer's  case,    . 

, 

543 

Crary  v.  Goodman, 

, 

350 

v.  Smith,    . 

290 

Craythorn  v.  Swinburn, 

108, 

116 

Creagh  v.  Wilson, 

525 

Crew  v.  Turnival, 

27S 

Cricket  v.  Dolby, 

514 

Croft  v.  Day, 

. 

122 

Crocket  v.  Dodge, 

404 

Crone  v.  Odell, 

490 

Crompton  v.  Sale, 

543 

Cross  v.  Lewis,     . 

394, 

396 

Crosby  v.  Hillyer, 

465 

Croton  Turnpike  v.  Ryder, 

i 

393 

Crow  v.  Ballard, 

204 

Crowder,  Ex  parte, 

# 

727 

Crozier  v.  Rice,    . 

B 

64 

Cripps  v.  Read, 

# 

153 

Cruikshanks  v.  Rose,   . 

, 

101 

Cruger  v.  Cruger, 

, 

649 

v.  Halliday, 

, 

612 

Cruise  v.  Christopher, 

. 

202 

v.  Bailey. 

516 

XVI 


Table  of  Cases. 


Crumb,  Ex  parte, 
Cud  v.  Rutter,      . 
Cud  worth  v.  Thompson, 
Cummings  v.  White,     . 
Cumberland  v.  Codrington, 
Cumpston  v.  McNair,  . 
Curtis  v.  Curtis, 
Cushney  v.  Henry, 
Cuthbert  v.  Haley, 
Cutler  v.  Powell, 
Cnyler  v.  Ensworth,     . 

D 


Dakin  v.  Deming, 

t.  Hudson  River  Railroad, 
Dale  v.  McEvers, 
v.  Roosevelt, 
Dana  v.  Valentine, 
Danell  v.  Molesworth,  . 
Daniel  v.  Davison, 

v.  Faulkner, 

v.  North,   . 
Dapre  v.  Thompson,     . 
Darley  v.  Darley, 
Dartmouth  College  v.  Woodward, 
Darwin  v.  Upton, 
Dashwood  v.  Blithway, 
v.  Bulkley,  . 
Davenport  v.  Davenport, 
Davidson,  Matter  of, 
Davis'  case, 
Davis  v.  Hone. 

v.  Doddj      . 

v.  Earl  of  Strathmore, 

v.  Mayor  of  N.  Y. 

v.  Shield,  . 

v.  West,      . 
Davou  v.  Fanning,        .    186,  187, 
Davy  v.  Davy, 
Dawes  v.  Swan,    . 
Dawson  v.  Cole,   . 
v.  Wood, 
Day  v.  Merry, 
v.  Trigg, 
Dazell  v.  Odell,     . 
D'Aguilar  v.  D'Aguilar, 
Realty  v.  Murphy, 
Deane  v.  Test, 
De  Baranti  v.  Gott, 
De  Caters  v.  Le  Ray  Chaumond, 
De  Costa  v.  De  Pas, 

v.  Scandret,   . 
Decouche  v.  Savetier,  . 
De  Forest  v.  Frary, 
Defreeze  v.  Trumper,    . 
Degraffenseid  v.  Donald, 
Degraw  v.  Classon, 
Deg  v.  Deg, 
Deeks  v.  Strutt,    . 
De  la  Garde  v.  Lempriere,    . 
De  la  Vigaire  v.  Bush, 
Delmonico  v.  Guillaume, 
Delony  v.  Hutchinson, 
De  Maimbray, 

De  Manneville  v.  De  Manneville, 
Demarest  v.  Wynkoop,  249,  444, 445 
Den  v.  Kinny, 


'29. 


239,  421, 


623 
271 
627 
91 
567 
709 
695 
610 
222 
131 
107 


.  560 
.  560 
.  445 
69,  75 
.  383 
.  517 
.  251 
.  126 
.  394 
68,  70 
.  626 
744 
.'  395 
.  451 
.  627 
.  383 
.  628 
.  630 
.  293 
.  53 
.  438 

405,  739 

268,  414 
.   56 

613,  605 
.  134 
.  493 
.  462 
.  244 
.  372 
.  500 
.  213 

661,  665 
.  204 
.  492 
.  482 

187,  605 
.  580 

151,  168 
.  482 
.  462 
.  157 
353 
coo 


ozz 

414 
.  501 
.  638 
.  452 
.  711 
.  712 
.  456 
369,  623 
, 608,  618 

370 


Dennison  v.  Cook, 
Dent  v.  Bennett,  . 
Denton  v.  Denton, 

v.  Nanny, 

v.  Stewart, 
De  Peyster  v.  Clarkson 

v.  Clendining,  330,  423 
Depuy  v.  Johnson, 
De  Reimer  v.  De  Cantillon, 
De  Rivafinoli  v.  Corsetti, 
De  Vanbagh  v.  De  Yanbagh 
De  Vaynes  v.  Noble,     . 
De  Yean  v.  Fowler, 
Devoe  v.  The  Penrose  Bridge, 
Dewey  v.  Hoag,   . 
De  Witt  v.  Schoonmaker, 

Dey  v.  Dunham,'      254,  256,  428 

Dias  v.  Bochaud, 

Dickenson  v.  Dickenson, 

Dickerson  v.  Philips,    . 

Dings  v.  Wolcott, 

Dillon  v.  Parker, 

Disbrow  v.  Henshaw,    . 

Disney  v.  Robertson,     . 

Ditillan  v.  Gale,    . 

Divver  v.  McLaughlen, 

Dix  v.  Reed, 

Doane  v.  Eddy,    . 

Dob  v.  Halsey,     . 

Dobbins  v.  Bownan, 

Dobson  v.  Racey, . 

Doddington  v.  Hallet,  . 

Dodge  v.  Strong, . 

Doe  v.  Ball, 

v.  Howland,  . 

v.  Manning,  . 

v.  Micklem.  . 

v.  Routledge, 

v.  Sanburn,  . 

v.  Snelling,   . 

v.  Starlake,  . 

v.  Toffield,    . 
Doloret  v.  Rothschild, . 
Donovan  v.  Fenn, 
Donne  v.  Lewis,   . 
Dorr  v.  Shaw, 
Dorland  v.  Dorland, 
Dorsay  v.  Ganaway, 
Doty  v.  Whittlesey, 
Douglass'  case,     . 
Douglass  v.  White, 

v.  Wiggins,    . 
Doughty  v.  Bull, 
Downing  v.  Palmateer, 
Dows  v.  Morewood, 
Dox  v.  Barkenstose,     . 
Drake  v.  Hudson  River  Railroad 
Draper's  case, 
Drew  v.  Hanson,  . 
v.  Clerk,      . 
Drummond  v.  Magee,  . 
Druse  v.  Dennison, 
Dubois  v.  Doubleday,  . 
Dubourg  v.  United  States, 
Dudley  v.  Littlefield,    . 

v.  Mayhew, 
Drury  v.  Hook,     . 


226 

175 

666 

433 

309 

613, 

625 

424, 

470 

107 

163 

277 

278 

655' 

656 

193, 

720 

104 

399 

356 

499, 

501 

539 

429, 

430 

108 

77 

463 

348 

544 

m 

624 

325 

448 

241, 

457 

536 

243 

193, 

709 

490, 

491 

605 

710 

347, 

358 

240 

486 

234 

492 

234 

57 

486 

492 

499 

277, 

293 

238 

564 

337 

339 

522 

101 

353 

688 

406 

373 

9 

47 

379 

98 

240 

337 

402 

740 

481 

296 

68 

654 

496 

545 

462 

91 

712 

, 

383 

210 

Iable  of  Cases. 


xyii 


Drarv  v.  Smith,  ....     554, 
Duffield  v.  Elwes,         .  .     555, 

Puke  of  Bedford  v.  British  Museum,   . 

Grafton  v.  Hilbard, 

Hamilton  v.  Mohun, 

Rutland  v.  Rutland, 

Somerset  v.  Cookson, 

St.  Albans  v.  Beauclerk, 
Dulles  v.  De  Forest,      .... 
Duncan  v.  Lyon,        86,  161,  163,  353, 
Duncomb  v.  Mayor, 
Dungey  v.  Angoor,       .         .         .     317, 
Dunham  v.  Day,  . 
Diinkley  v.  Van  Buren,        .        .     449, 
Dunn  v.  Chambers,       .        .        .     202, 
Dunscomb  v.  Dunscomb, 
Durant  v.  Durant, 
Dastan  v.  Dustan, 
Diyden  v.  Frost,  . 
Dutch  Church  v.  Mott, 

290,  573,  581,  610,  611,  734,  735 
Dwight  v.  Pomroy,  .... 
Dyer  v.  Hargrave,        .... 

v.  Rice, 

Dyett  v.  Pendleton,      .... 


556 
556 
280 
389 
210 
561 
364 
540 
101 
355 
307 
318 
431 
450 
205 
614 
662 
523 
609 

736 
76 

296 
289 
128 


E 

Eager  v.  Price,     . 
Earl  of  Arglasse  v.  Muschamp, 
Bath  v.  Shirwin, 
Chesterfield  v.  Jansseen, 
Coventry  v.  Coventry, 
Clarendon  v.  Hornby, 
Cowper  v.  Baker, 
Ripon  v.  Hobert, 
Earl  v.  Thornbery, 
Earlon  v.  Saunders, 
East  India  Co.  v.  Boddam, 
v.  Donald, 
v.  Neve, 
East  v.  Cooke, 
EchlifF  v.  Baldwin,       . 
Eddy  v.  Traver,    . 
Edie  v.  Davidson, 
Edgell  v.  Haywood, 
Edgerton  v.  Peckham, 
Bdmeston  v.  Lvdes, 
Edwards  v.  Child, 
v.  Harben, 
v.  Meywick,   . 
Edward  v.  Ilitherington, 
Edwin  v.  East  India  Co., 
Eedes  v.  Eedes,    . 
Egberts  v.  Wood,  104,  4G4,  465, 
Egbert  v.  Pemberton,   . 
Ellis  v.  Graves,     . 
v.  Lewis, 
v.  Mincrvie, 
v.  Walker,    . 
Elliot  v.  Adair,     . 
v.  Davenport, 
v.  Pell, 
Elibank  v.  Montolieu,  . 
Eldridge  v.  Hill, 
Ellison  v.  Moffat, 
Elniendorff  v.  Lansing 
Biting  v.  Bank  of  U.  S. 

E      J  UR. 


239 
270 
51,  326 
182 

29 
705 
382 
392 

70 
299 
51,  52 


492 
302 
111 
721 
238 
294,  295 
401 

76 
243 
172 
156 

76 
636 
08,716,719 
238 


549 


329, 


10 


Elton  v.  Elton,     . 
Elton,  Ex  parte,  . 
Elwes  v.  Maw, 
Elwood  v.  Dieffendorff, 
Ellsworth  v.  Cook, 

v.  Cuyler, 
Ely  v.  Adams, 
Emerson  v.  Davis, 
Emery  v.  Tichout, 
Emmons  v.  Cairn, 
Enders  v.  Enders, 
England  v.  Downs, 

v.  Jackson, 
Ensign  v.  Colburn, 
Errat  v.  Barlow,  . 
Evans  v.  Bisley, 

v.  Bicknell, 

v.  Ellis,      . 

v.  Evans,  . 
Everlson  v.  Booth, 

v.  Evertson, 
v.  Tappan, 
Eyre  v.  The  Countess  of  Shaftsburv 
623, 
Exall  v.  Patridge, 


111, 


504, 
211, 


370.  371, 

0 

'.     149, 


624, 


525 
727 
375 
489 
239 
239 
497 
384 
101 
461 
558 
212 
289 
431 
629 
208 
436 
445 
718 
337 
445 
183 

629 
10 


445 
550 
173 
504 
510 
511 
428 
636 
323 
144 
368 
71 


F 

Fairchild  v.  Holly, 

Falls  v.  Carpenter, 

Fanning  v.  Dunham,    .        46,  47, 

Farmers'  Fire  Ins.  Co.  v.  Edwards, 

Farnam  v.  Brooks, 

v.  Campbell, 
Farrant  v.  Lovel, 
Farrington  v.  Knightly,        .     490, 
Faulkner  v.  Daniel, 
Featheistonhaugh  v.  Fenwick, 
Fellows  v.  Fellows, 
Fenwick  v.  Chapman, 
Ferard  v.  Prentice, 
Ferguson  v.  Ferguson, 

v.  Kimball, 

v.  Lee, 

v.  Norman,   . 

v.  The  Union  Trust  Co. 

v.  Union  Furnace  Co. 
Ferrars,  Ex  parte,  . 
Ferris  v.  Crawford, 
Ferroil  v.  Shaen, 
Fettiplace  v.  Gorges, 
Fells  v.  Read,       .        .        .    276, 
Field  v.  Field,      . 
v.  Holland, 
v.  Shieflelin, 
Finch  v.  Brown, 

v.  Earl  of  Winchelsea, 
v.  Finch,    . 
Fish  v.  Dodge, 
v.  Howland, 
v.  Wilbur,    . 
Fisher  v.  Fields, 

v.  Samuda, 
Fitch  v.  Smith,  . 
Fitchet  v.  Adams, 
Fitzgerald  v.  Peck, 
Fitzrov  v.  Guillam, 
Fitzsimmons  v.  Ogden, 


43 


100,  10 
.  301 

216,  303 
442 
190 
239 
381 

498,  561 
126 
716 
342 
487 
328 
434 
4,  450 
557 
124 
243 
458 

689,  690 
306 
222 
651 

364,  365 
589 
98 
625 
445 
74,  303 
647 

390,  394 
443 
392 

412,  413 
157 
239 
531 
68 
225 
43 


Table  of  Cases. 


Flavsl  v.  Harrisen, 

.     404 

Fleming  v.  Slocum, 

147,  150 

Flint  v.  Brandon, 

269,  277 

Floyd  v.  James,   . 

.     357 

Folsom  v.  Marsh, 

.     385 

Fonda  v.  Van  Home, 

.     621 

Fonereau  v.  Fonereau, 

.     492 

Fontain  v.  Ravenal, 

580,  598 

Forrester  v.  Leigh, 

.    507 

Foote,  Appellant, 

.    505 

Ford  v.  Peering,  . 

.     307 

v.  Stuart, 

.    462 

Forde  v.  Herron, 

.     712 

Fornereau  v.  Fornereai 

i, 

515,  516 

Forster  v.  Hale,    . 

413,  414 

Fort  v.  Burch, 

252,  253 

Foshay  v.  Ferguson, 

.     208 

Foster  v.  Blagden, 

.    569 

v.  Charles, 

.     150 

v.  Foster,  . 

136,  657 

Fowle  V.  Freeman, 

.     267 

Fowler  v.  Fowler, 

.    542 

v.  Williams, 

.      91 

v.  Willoughby, 

.    504 

v.  Wood, 

353,  355 

Fowler,  Matter  of, 

.     681 

Fox  v.  Har.bury, 

.     721 

v.  Mackreth, 

18 

I,  188,  604 

v.  Wright.      . 

.     181 

Foxcraft  v.  Lister, 

.    285 

Francia  v.  Joseph, 

.     257 

France  v.  Bolton, 

.     304 

Franklin  v.  Van  Cott, 

.    455 

Frazerv.  Frazer, 

.    352 

v.  Western, 

.     284 

Frazier  v.  Hyland, 

.     100 

Frederick  v.  Frederick, 

271,  624 

Freeland  v.  Heron, 

.     142 

Freeman  v.  Baker, 

.     149 

Freeman's  case,    . 

.     684 

Freke  v.  Farrington, 

.    546 

French  v.  Bacon, 

.    446 

v.  Gardiner, 

.     161 

v.  Shotwell, 

.     163 

-■"retwell  v.  Stacy, 

536,  557 

Frisby  v.  Ballan, 

.     263 

Frost  v.  Raymond, 

.     155 

Fry  v.  Fry, 

.    669 

Fuller  v.  Acker,   . 

.    457 

v.  Hubbard, 

.    296 

v.  Yates,    . 

547,  550 

Fullerton  v.  Jackson, 

.     621 

Gr 

Gahn  v.  Niemcewicz,     ....     109 

Gainsborough  v.  Gifford,  351,  352,  353,  357 

Gaines  v.  Chew, 146 

Gale  v.  Linds, 

.    210 

Gales  v.  Shipp,     . 

.    357 

Ganse,  Matter  of 

.682 

Gardner  v.  Adams, 

242.  262,  268 

v.  Gardner, 

555;  645,  651 

v.  Lee,    . 

37,  698 

v.  Parker, 

.       55,  554 

v.  Printup, 

.     508,  506 

v.  Village  of  Newburah 

Gnrrard  v   Lauderdale 

.    464 

Garret  v.  Pretty, 
Garson  v.  Green, 
Garth  v.  Cotton,   . 

v.  Meyrick, 
Garthshore  v.  Chalie,   . 
Gasque  v.  Small, 
Gates  v.  Boen, 

v.  Green,     . 

v.  Madison  Ins.  Co, 
Gawler  v.  Standerwicke, 
Gay  v.  Ballou, 
Genet  v.  Talmage, 
German  v.  Machin, 
v.  Mosher, 
Germond  v.  Jones, 
Getmans  Ex'rs  v.  Beardsley 
Getman  v.  Getman, 
Getty  v.  Hudson  River  R. 
Gibson  v.  Goldthwaite, 
v.  Jeyes,  . 
v.  Smith, 
v.  Wood  worth, 
Gifford  v.  Reid,     . 
Gilchrist  v.  Cunningham, 
v.  Stevenson, 
v.  Ward, 
Gilbert  v.Eden,     . 
v.  Gilbert, 
Gile  v.  Lyon, 
Giles,  Matter  of,    . 
Gill  v.  Dickinson, 
Gillaume  v.  Adderly, 
Gillespie  v.  Moon,  73 

Gillet  v.  Baleolm, 

v.  Wray, 
Glenny  v.  Hitchens, 
Globe  Ins.  Co.  v.  Lansing, 
Glyu  v.  Duesbury, 
Godard  v.  Snow, 
Goddard  v.  Hodges, 
Godfrey  v.  Saunders, 

v.  Watson, 
Going  v.  Emmery, 
Goldsmid  v.  Goldsmid, 
Goman  v.  Salisbury, 
Goodtitlev.  Maddern, 
Gooding  v.  McAllister 
Goodrich  v.  Downs, 
Goodwin  v.  Richardson 
Gordon  r.  Hobart, 
Gordon,  Matter  of, 
Goring  v.  Naish, 
Goss  v.  Nelson,     . 
Gott  v.  Cook, 
Goulborne  v.  Brooks 
Gould  v.  Banks,    . 
Gould  v.  Gould,   . 

v.  Oliver,   . 
Gouverneur  v.  Elmendorf, 
Governeur  v.  Lynch, 
G< inland  v.  DeFaria, 
Graham  v.  Dickinson 

v.  Wyck, 
Granard  v.  Dunken, 
Grant  v.  Quick,    . 

v.  U.  S.  Bank. 
Graves,  In  goods  of, 
Graves  v.  Merrv, 


.    523 

124,  443 

.    147 

.    540 

.    513 

.    266 

.     195 

.       57 

.     168 

.     330 

.     629 

558,  624 

267,  284,  286 

.      45 

.    420 

.      76 

.    600 

.      37 

315,318,319,322 

204,  677 

138,  369 

.     384 

.     392 

.     429 

249,  569,  608 

.     101 

.     305 

63,  68,  80 

37,  698 


r&, 


.     454 
.     504 

6,  288,  300 
.  434 
.  525 
.      37 

450,  452 
.  318 
.  212 
.  101 
.  87 
.  446 
.  593 
.  525 
.  292 
.  486 
.     288 

466,  467 
.  712 
.  92 
.    690 

263,  303 
.  516 
424,  477,  522 
.  519 
.  717 
.  72 
.  250 
.  152 
119,  251,  454 
.  179 

565,  566 
.  642 
.  388 

7,  344,  347 

46,  255 
.  367 
.  718 


Table  of  Cases. 


nx 


8nves  v.  The  Boston  Ins.  Co. 
Gray  v.  Cockerell, 
v.  Mathias, 
v.  Russell,    . 
Graydon  v.  Hickj, 
Green  v.  Beals,     . 

v.  Bostwick, 

v.  Farmer, 

v.  Hart, 

v.  Pigot 

v  Putnam, 

v.  Riddle, 

v.  Slayter, 

v.  Smith,     . 

v.  Winter,    . 
Grecnieaf  v.  Cook, 
v.  King, 
Green  way  v.  Adams, 
Greenway,  Ex  parte, 
Grew  v.  Duke  of  Northumberland 
Gregory  v.  Forrester, 

v.  Thomas, 
Griffith  v.  Griffith, 
Griffiths  v.  Hamilton, 
v.  Spratley, 
Grimstone  v.  Bruce, 
v.  Carter, 
Ganell  v.  Schmidt. 
Griswold  v.  Sheldon,     . 
v.  Waddington, 
Grosse  v.  Gardner, 

v.  Grover, 

v.  Husell, 

v.  Wakeman,     .        .     245, 
Guest  v.  Homfray, 
Guidot  v.  Guidot, 
G  liilderland  v.  Knox, 

v.  Knapp, 
0  i.  in  v.  Green, 

v.  Mel  moth, 

i  .  Whittaker, 
G  irj  D  lfeaton, 


.  7G 

.  307 

.  306 

.  384 

.  526 

.  717 

.  332 

.  124 

.  462 

.  331 

700, 701 

.  310 

249,  252 

.  299 

2,  184,  185,  188 

.  55 

.  605 

.  309 

.  53 

.  273 

.  143 

.  458 

.  249 

.  146 

.  266 

.  45 

253,  431 


251, 


.  198 
243,  245 
.  717 
.  159 
.  555 
.  304 
246.  467 
295,  296 
.  299 
.  461 
.  454 
.  320 
.  396 
98, 100 
.  203 


H 

Haggerft  v.  Taylor, 
1 1         v.  Jaggar,, 
jSaighl  v.  liadgley, 
Haines  v.  Beach, 

Baker,    . 
Hale  v.  Henry, 
Hall  v.  Hall, 
v.  Marston, 
v.  Reed, 
v.  Tuttle,      . 
v.  Warren,   . 
Ilalk'tt  v.  Bourileld, 
v.  Thompson, 
v.  Wylie, 
Hallock  v.  Smith, 
Halsey  v.  Carter, 
v.  Grant,  . 
v  Reed,   . 
HaltzaptTell  v.  Baker, 
Haly  v.  Goodson, 
Haman  v.  Carner, 
Hamblin  v.  Dunneford, 
Hamilton  v.  Cummings,  302, 


.     715 
.     381 
.     277 
.     447 
.     356 
.     712 
.     684 
.     100 
.      64 
241,  243,  458 
199,  262.  280 
.     123 
.     239 
57,  137 
124,  443 
.     355 
269,  296 
483,  567 
.     137 
.     362 
.       64 
.     277 
304,306,307,300 


Hamilton  v.  N.  Y.  and  Harlajjtt  Railroad,  402 
v.  Russell,     .        .        .     226,  468 
v.  Wright,      .         .         .         .605 
Hammersly  v.  Lambert,        .     192,  193,  719 
Hammond  v.  Barklay,  .         .         .     123 

Hampton  v.  Suencer,  .        .        .414 

Hanberry  v.  Litchfield,  .         .251,  296 

Hanby  v.  Roberts,  ....  565 
Hanford  v.  Artcher,  ....  243 
Hanks.  Matter  of,  689,  690 

Hansard  v.  Robinson,  ....  53 
Hansen  v.  Gardiner,  .  .  .  139,  382 
v.  Graham,  .  .  514,  515,  516 
Harding  v.  Randall,  ....  150 
Hardwick  v.  Thurston,  .        .         .     513 

Harford  v.  Browning,  ....  539 
Harger  v.  McCullough,  .  .  .  752 
Hargravvs  v.  Rothwell,  .  .  250.  609 
Barker  v.  Conrad,  .  .  .  .100 
Harkley  v.  Sprague,     ....     222 

Harriet  v.  Gidding 209 

Harris  v.  Brooks,  .        .        .        .114 

v.  Clark,    .        .        .    553,  554,  555 
v.  Fly,       .        .    487,  489    518.  519 

v.  Harris, 061 

v.  Warner,  .         .         .         .115 

Harrington  v.  Bigelow,  .         .         .     361 

Harrison  v.  Harrison.    .         .         .     161,  357 

v.  Nichols,      ....     256 

v.  Rowlev,      .        .        .     535,  536 

v.  Southcote,  .         .     256,  307 

v.  Sterry,        ....     716 

Harson  v.  Beating,        ....     636 

Hart  v.  Drainer, 197 

v.  Maver  of  Albany,  .  .  383,  399 
v.  Ten  Eyck,  104, 188,  363,  456,  458,  614 
v.  Windsor,  ....     153 

v.  Wright, 158 

Hartley  v.  Rice, 214 

Hartshorn  v.  Hartshorn,  .  .  .  693 
Harvey  v.  Astor,  .     215,  216,  525,  531 

v.  Harvey,         ....     627 
Ilarwood  v.  Kirby,        .         .  .126 

Hascall  v.  The  Madison  University,  .  406 
Haslewood  v.  Pope,  .  .  .  565,  568 
Hatch  v.  Cobb,     .        .        .291,  294,  298 

r.  Hatch 186 

v.  White, 450 

Havens  v.  Foster,  .  .         .64 

v.  Hussey,        .         .         .     715,  716 

Ilaviland  v.  Myers,        .         .         .     636,  637 

Hawkins  v.  Taylor,      ....      46 

Ilawley  v.  Bradford,     .        .        .     649,696 

v.  Clowes,        .        .        .     139,  380 

v.  Cramer,        .        .      90,  189,  606 

v.James,         .        .     487,  50 1,  545 

v.  Manners,      .         .         .     161,  339 

v.  Ross,  .        .        .        .464 

Hav  v.  Palmer 131 

Haves  v.Ward,    .     108,  327,  331.  346,  347 

Hays  v.  Hall, 269 

v.  Johnson,  ....     320 

Haywood  v.  Judson,  .  .  .  700,  704 
Head  v.  Stamford,  ....  41 
Heath  v.  Dendy,  ....    556 

v.  Hand", Ill 

Heathcote  v.  Paignon,  .         .  202 

Heatly  v.  Finster,  .     262 


Iable  of  Cases. 


Heatly  v.  Thomas, 
Hedges  v.  Hedges, 
Hesketh  v.  Blanchard, 
life:  iy,  Matter  of, 
Heeimance  v.  Vemoy, 
Heimer  v.  Shoemaker, 
Hendricks  v.  Robinson, 
Henkle  v.  Royal  Exchange,  . 
Henry  v.  Davis,    .         .     428 
Hepburn  v.  Aud, 
Herbert's  case, 
Herbert  v.  Reid, 

v.  Wren, 
Heslakenden's  case, 
Heine  v.  Meeres, 
Hemiup,  Matter  of, 
Herm  v.  Mills,     . 
Herrick  v.  Borst, 
Heydon  v.  Heydon, 
Higginbothani  v.  Bennett, 
Hill  v.  Bulkley,    . 
v.  Day, 
v.  Turner, 
Hiller,  Matter  of, 
Hilliard  v.  Taylor, 
Hindes'  Lessees  v.  Langworth, 
Hinman  v.  Judson, 
Hitchcock  v.  Harrington, 
Hoag,  Matter  of, 
Hoath  v.  Hoath,  . 
Hodges  v.  Peacock, 
Hodgson  v.  Butts, 

v.  Hodgson,  . 
v.  Shaw, 
Hadden  v.  Spader, 
Hoes  v.  Vanhousen,  487,  488, 
Hoffnagle  v.  Anderson, 
Hogeboom  v.  Hall, 
Haggart  v.  Cutts, 
Holbrook  v.  Finney,     . 
Holden  v.  Chambury,   . 

v.  Dakin, 

v.  Holden, 
Holdridgo  v.  Gillespie, 
Holford  v.  Wood, 
Hollerman  v.  Hollerman, 
Holliday  v.  Atkinson,  . 

v.  Marsh, 
Hollingworth  v.  Napier, 
Holloway  v.  Holloway, 
Holly  v.  Adams, 
Holmes  v.  Coghill, 

v.  Doing, 

v.  Holmes, 

v.  Tremper, 
Holmes,  Matter  of, 
Holt  v.  Holt, 

v.  Vernon,    . 
Holvland,  Ex  parte, 
Hone  v.  Schaick,      461,  490, 
Hooker  v.  Utica  Turn.  Co. 
Hooley  v.  Hutton, 
Hoomes  v.  Sueorter, 
Hooper,  Ex  parte, 
Hopkins,  Ex  parte, 
Ho'ikins  v.  Banks, 

v.  Hopkins, 
v   Mazyck, 


1ST 
43  ' 


456, 

447. 
295, 
119, 

699, 


411 


081 


.     646 

.  556 
.  713 
686,  687 
.  158 
.  420 
466 
74 
448 
309 
369 
496 
700 
376 
172 
342 
609 
111 
721 
55 
296 
704 
347 
701 
569 
234 
098 
433 
689 
515 
541 
227 
638 
110 
237 
504 
105 
535 
320 
434 
134 
157 
661 
447 
539 
665 
555 
117 
357 
492 
555 
83 
613 
640,  669,  697 


,  691, 

37, 
684, 
516, 


508,  52 


188, 


678, 
186, 


494,  550, 


681 
188 
565 
690 
699 
742 
540 
182 
441 
369 
467 
412 
68 


Flopper  v.  Hopper, 

. 

665 

Hopper,  Matter  of,        .        , 

691 

Hornblow  v.  Shirley,    . 

296 

Home,  Matter  of,          . 

182 

Hornsby's  will,     . 

146 

Horry  v.  Horry, 

55 

Hosack  v.  College  of  Physicians, 

730 

Hosford  v.  Mervin, 

600, 

704 

Hotham  v.  East  India  Co.    . 

527 

House  v.  House, 

378, 

567 

Hovey  v.  Blakemail,    . 

561 

v.  McCrea, 

. 

343 

How  v.  Bromsgrovo,     . 

. 

324 

Howard  v.  Harris, 

428 

v.  Hooker, 

696 

v.  Moffat,  501,  659,  635,  6J 

!6,  637 

,614 

Howe,  Matter  of,          . 

442, 

586 

Howell  v.  Rawson, 

172, 

173 

Howland  v.  Rench, 

101 

Howson  v.  Hancock,     . 

214 

Hoxie  v.  Carr, 

. 

712 

Hoyt  v.  Geltston, 

. 

346 

v.  Mackenzie,      .        . 

387 

v.  Storey,    . 

464 

Hubbard  v.  Goodwin,  . 

6C0 

Hudson  and  Delaware  Canal  Co.  \ 

.  Erie 

Railroad, 

3?  2 

Hudson  v.  Plets, 

2?9 

Huger  v.  Bosquet, 

l'O 

Hughes  v.  Edwards,     . 

432, 

449 

v.  Kearney, 

443 

Huguenin  v.  Baseley,  . 

. 

147 

Hulce  v.  Thompson,     . 

. 

313 

Hull  v.  Reed, 

{.9 

Hulme  v.  Tenant, 

647 

Humberston  v.  Humberston, 

536 

v.  Stanton, 

517 

Hunt  v.  Farmers'  Loan  Co.  . 

37 

698 

v.  Rousmanier,     . 

61 

62 

v.  Townsend, 

338 

Hunter,  Ex  parte, 

327 

Hunter  v.'  Goudy, 

72 

v.  Osterhout,     . 

98 

Huntington  v.  Mather, 

!    458 

459 

Hurst  v.  Beach,    . 

541 

Hussey  v.  Man.  and  Mech.  Bank, 

101 

Hyde  v.  Hyde,     . 

60S 

v.  Tanner,    . 

78 

Hyder  v.  Stone,    . 

641 

Hyslop  v.  Clark, 

467 

Hytton  v.  Hytton, 

I 
Incledon  v.  Northoote, . 

184 

474 

Ingraham  v.  Porter, 

465 

Innes  v.  Lansing, 

'.    708 

716 

In  wood  v.  Twyne, 

624 

Iron  v.  Smallpiece, 

554 

Irving  v.  Dikay, 

419 

424 

Isenhart  v.  Brown, 
Ivie  v.  Ivie, 

• 

552 
308 

Jacob  v.  Fountain, 
Jacobson  v.  Williamson, 
Jaekman  v.  Mitchell,    . 


636 

210 


Table  of  Cases 


Jackson  v.  Allen, 

v.  Andrews, 

v.  Ashton, 

v.  Babcock, 

v.  Blodgett, 

v.  Bodle, 

v.  Brownson, 

v.  Bull,  . 

v.  Burgott, 

v.  Butler, 

v.  Caldwell,     .     18 

v.  Cary,  . 

V.  Crafts, 

v.  Churchill, 

v.  Davis, 

v.  De  Witt, 

v.  Dubois, 

v.  Delaney, 

v.  Dunlap, 

v.  Duchaise, 

v.  Edwards, 

v.  Elston, 

v.  Embler, 

v.  Feller, 

v.  Fleet, 

v.  Garnsey, 

v.  Given, 

v.  Gumair, 

v.  Green, 

v.  Hall,  . 

v.  Hartwell, 

v.  Hart,  . 

v.  Henry, 

v.  Humphrey, 

v.  Housel, 

v.  Halloway, 

v.  Jackson, 

v.  Johnson,  254,  42 

v.  King, . 

v.  Laughhead 

v.  Leek,  . 

v.  Loomis, 

v.  Matsdorf, 

v.  Morse, 

v.  Mowry,  254,  425 

v.  Myers, 

v.  Merrill, 

v.  Nixon, 

v.  Parkhurst 

v.  Post,  . 

v.  Potter, 

v.  Peck, . 

v.  Phipps, 

v.  Robinson, 

v.  Sternberg, 

v.  Sharp, 

v.  Timmerman 

v.  T  uttle, 

v.  Vandalfson, 

v.  Van  Valkenburtjh, 

r.  Van  Schoonhoven, 

r.  Vreedenberg, 

r.  Walsh, 

r.  Wells, 

V.  Zimmerman, 
Jame*  v.  Graves,  . 
\.  Hubbard, 
V  James,  . 


.      56 
.     373 
.     2fi3 
.     486 
.    462 
.     465 
138,  370 
485,  486 
.     253 
.     307 
196,  201,  240 
.     412 
433,  442 
552,  691 
.     433 
621,  691 
.     255 
.    420 
.    441 
.     151 
702,  703 
.     253 
.    486 
.     602 
.    412 
.    240 
.     608 
199 
429,  446 
.     449 
.     735 
.     165 
.     249 
.     253 
.     498 
.     484 
514,  626 
431,  436 


429 


435 


675,  680 
.     446 


253 

310 

416 

416 

436 

445 

432 

227 

486 

695 

441 

234 

484 

230 

# 

465 

420 

416, 

690 

253 

468 

253 

607 

431 

433 

621 

186, 

607 

486 

232 

74 

ll'l 

557 

James  v.  Pritchard, 
v.  Semmens, 
v.  Woodruff, 
Janson  v.  Ostrander, 
Jaques  v.  Meth.  Epis.  Church.  483 
Jarvis  v.  Palmer, . 
v.  Rogers, . 
Jeffereys  v.  Jeffereys, 

v.  Small, 
Jeffs  v.  Wood, 
Jemison  v.  Hapgood, 
Jenkins  v.  Fryer, 
v.  Groat, . 
v.  Pye.    . 
v.  Wilds,  . 
Jenner  v.  Morgan, 
Jennings  v.  Looks, 
Jenks  v.  Alexander, 
Jerome  v.  Ross,    . 
Jervis  v.  White,   . 
Jervois  v.  Duke,  . 
Jewitt  v.  Palmer, 
Jewson  v.  Moulson, 
Johnson  v.  Bloodgood, 
v.  Corbett, 
v.  Fleet,      412,  414,  415, 
v.  Johnson, 
Jones  v.  Bowden, 
v.  Bright,   . 
v.  Conde,    . 
v.  Great  Western  Railroad, 
v.  Jones, 
v.  Kilgore, . 
v.  Lyndes,  . 
v.  Philips,  . 
v.  Smith,    . 
v.  Swan,     . 
v.  Williams, 
v.  Woodhull, 
Jordan  v.  Holkham, 
Joseph  v.  Ingrabam, 
Joynes  v.  Stratham, 
Judd  v.  Pratt,      . 
v.  Traver,    . 
Judson  v.  Rossie  Galena  Co., 
Jumel  v.  Jumel.  . 


318 

.  540 

.  753 

.  730 

647, 

.   75 

.  456 

505 

.  706 

543 

607 

489,  512 

720,  193 

178 

350 

130 

519 

101 

382 

305 

524 

611,  256 

636,  639 

460 

56' 

',  568 

416,  419 

65" 

",  658 

159 

156 

449 

405 

664,  GG5 

98,  101 

301 

438 

456 

257 

570 

353 

531 

244 

288 

490 

•2-2o 

75: 

,  753 

453 


K 


Kane  v.  Bloodgood, 

v.  Gott, 

v.  Vandenburgh 
Kane,  Matter  of,  . 
Keaf  v.  Allen, 
Kcane  v.  Roberts, 
Kcbble,  Ex  parte, 
Keisenbrack  v.  Living' 
Kellogg  v.  Slawson, 
Kelly  v.  Kelly,      . 
Kelsey  v.  Western, 
Kemble  v.  Kean, 
Kemp  v.  Pryor,    . 
v.  Coleman, 
Kcmpsball  v.  Stene, 
Kendall,  Ex  parte, 
Kennedy  v.  Green, 
v.  Mills, 
Kenny  v.  Ogden, 


ton, 


re, 


45,  425,  462 
423,  460,  587 
.  381 
■  627 
.  210 
.  669 
.  629 
6,  288,  300 
.  246 
86,  87 
488,  520 
277,  278 
45,  49 
.  210 
.  294 
331,  337,  339 
.  608 
.  552 
.  163 


Table  of  Cases 


Kent  v.  "Welch,     . 

Kensington,  Ex  parte,  .        .        .    440, 
Kershaw  v.  Thompson, 
Ketchum  v.  Durkee, 
Keyes  v.  Williams, 
Key  v.  Vattier,     . 
v.  Bradshaw, 
Kidd  v.  Dennison,         .         .         •     139, 

v.  Rawlinson, 
KMney  v.  Consmaker, 
Kiest  v.  Woodhull, 
King  v.  Baldwin, 

48,  90,  108,  109,  111,  164, 

v.  Bardeau,         .        .        .     292, 

v.  Donnelly, 

v.  Greenhill, 

v.  Hamilton, 

v.  Hamlet, 

v.  Inhabitants  of  Laindon, 

v.  King, 

v.  Russell,  . 

v.  Shaw, 

v.  Strong,    . 

v.  Woodhull, 
King,  The  v.  De  Manneville 

v.  Ward, 
Kingdome  v.  Bridges, 
Kinsman  v.  Barker, 
Kirby  v.  Kirby,    . 

v.  Potter,    . 

v.  Shoemaker,    .        .        .    103,  7 

v.  Taylor,    . 
Kirk  v.  Hodgson, 
Kittle  v.  Crary,     . 
Kittletas  v.  Gardner, 
Kniskern  v.  The  Lutheran  Church, 


280, 
179, 

363, 


155 
441 
452 
708 
440 
174 
210 
370 
244 
488 
583 

331 
295 
610 
618 
292 
180 
497 
367 
557 
305 
557 
583 
638 
399 
647 
142 
667 
506 
719 
183 


571, 


Knight  v.  Lord  Plymouth, 
Knox,  Ex  parte,   . 
Knox  v.  Morgan, 
Knowles  v.  Gee,  . 
Krom  v.  Hogan,  • 


Lacon  v.  Martins, 

Lady  Arundell  v.  Phipps, 

La  Farge  v.  Hector, 

La  Grange  v.  Merrill,  . 

Laidlow  v.  Organ,     .        .     71,  72,  151, 

Lake  v.  Cradock, 

v.  De  Lambert,  .  .  .  368, 
l.amat  v.  Rowley, 
Lambert  v.  Heath, 
Lamley  v.  Harman,  .  .  .  210, 
L  Amoreux  v.  Crosby, 

v.  King,   . 

v.  Vandenburgh, 

v.  Van  Rensselaer,  420,  421 
Lanay  v.  Athol,    . 
Lancaster  v.  Buckhart, 
Lane  v.  Doty, 

v.  Schermerhorne, 
Langdale,  Ex  parte, 
Langdon  v.  Reed,        .        .        .     457, 
Langford  v.  Pitt, 
Langley  v.  Brown, 
Langton,  Ex  parte, 


717' 
561 
624 

742 
614 
256 
207 
37 
343 


284 
647 
113 
111 
167 
711 
470 

68 
158 
213 
691 
434 
445 
650 
567 

77 
190 
197 
713 
462 
290 

74 
440 


Langton  t.  Horton,       ....    814 

v.  Roylston,  ....     ol5 

Lanley  v.  Harper,         .        .        .  147 

Lansdown  v.  Lansdown,  5S 

Lansing  v.  Albany  Ins.  Co.  .         .     452 

v.  Eddy,      .        161,  351,  352,  353 

v.  Gaines,        .        .        .        .727 

y.  Goelet,        .    450,  451,  152,  458 

t.  Lansing,      ....     225 

v.  Orcutt         .        .        .351,  352 

v.  Russell,       .        .        .     305,  429 

v.  Smith,         .         .         .         .389 

v.  Van  Alstine,        .         .         .129 

Larabee  v.  Van  Alstine,        .        .        .    552 

Lasala  v.  Holbrook,      ....    402 

Lasher  v.  Lasher,         .        .        .    498,  547 

Lasher,  Matter  of,  .        .    633 

Latouch  v.  Donsany,    ....     256 

Land  v.  Otley, 490 

Laurie  v.  Laurie,  ....    667 

Law  v.  Thompson,        ....     513 

Lawrence  v.  Bayard,    ....    461 

v.  Beaubien,  ...      59 

v.  LawTence,         .        .        .    661 

v.  Mayor  of  N.  T.,        .        .     398 

v.  Trustees  of  Leake's  Orphan 

Asylum,    .        .        .     193,  719 

Lawrenson  v.  Butler,    ....     267 

Lawson  v.  Lawson,       .         .        .    554,  556 

Lawton  v.  Lawton,        ....    377 

Lawyer  v.  Sipperly,      ....     742 

Leavitt  v.  Palmer,         ....       75 

Le  Breton  v.  Miles,      .        .        .        .483 

Lechmere  v.  Earl  of  Carlisle,        .        .271 

Lee  v.  Paine, 542 

v.  Risdon, 376 

Leeds  v.  Dunn, 151 

Leeke  v.  Bennett 330 

Lee's  Adm's  v.  Reed,    ....     143 
Lees  v.  Nuttall,  .        .        .     189,  603 

Leggett  v.  Dubois,        ....     600 

v.  Perkins, 
Le  Guen  v.  Gouverneur,   163,  251 
Legoux  v.  Wante, 
Leicester  v.  Rose, 
Leigh  v.  Everhart's  Ex 
Leighton  v.  Leighton, 
Le  Neve  v.  Le  Neve, 
Lennon  v.  Nappers, 
Leonard  v.  Baker, 
Leroy  v.  Duke  of  Athol, 
Lett  v.  Morris, 
Lewellin  v.  Cobbold, 
Lewis  v.  King, 
v.  Landon, 
v.  M'Lemore, 
Leftly  v.  Mills,      . 
Like  v.  Thompson, 
Linden  v.  Hepburn, 
Lindsay  v.  Lynch, 
Lingard  v.  Bromley, 
Linker  v.  Smith, 
Lister  v.  Lister,    . 
Litchfield  v.  White, 
Little  v.  Lathrop, 
Littlefield  v.  Storey, 
Livingston  v.  Cornell, 
v.  Dean, 


477.  493 
352,  355 
46 
210 
304 
327 
608,  609 
293 
244 
337 
463 
212 
546 
403 
150 
53 
214 
37,  46 
286 
107 
211 
704 
472 
117 
460 
174 
445 


Table  of  Cases. 


484,  564 


68 


Livingston  v.  Hallei/beck,  .  .  .  362 
v.  Harris.  46,  220,  223,  224,  303 
v.  Haywood,  .  .  .380 
v.  Ketchum,  .  .  .  133 
v.  Livingston, 

135,  139,  499,  500,  561,  565, 
600,  647. 

273 
436 
567 
132 
393 
691 
456 
653 
94 
532 
80 
507 
627 
263 
361 
160 
371 
363 
676 
304 
372 
297 
751 
641 
599 
214 
222 
~68 
722 
62 
285,  286 
528 


304 


v.  Lynch,  . 
v.  Mclnlay, 
v.  Newkirk, 
v.  Ten  Broek, 
v.  Van  Ingen, 
Livingston,  Matter  of,  . 
Lockwood  v.  Ewer, 

v.  Thomas,  . 
Logan  v.  Mason,  . 
Long  v.  Dennis,    . 
v.  Israel, 
v.  Short,      . 
v.  Norcom,  . 
Longdale  v.  Longdate, 
Loomis  v.  Cline,  . 

v.  Wheelwright, 
v.  Wilbur, 
Lord  Chedworth  v.  Edwards, 
Lord  Doneghal's  case, 
Lord  St.  John  v.  Lady  St.  John, 
Lord  Tamworth  v.  Lord  Ferris, 
Lord  Walpole  v.  Lord  Oxford, 
Lowene  v.  Amer.  Fire  Ins.  Co. 
Lovitt  v.  Robinson, 
Loundsberry  v.  Purdy, 
Lowe  v.  Peers, 

v.  Walker,  . 
Lowndes  v.  Chisden, 
Lowns  v.  Taylor, 
Lowry  v.  Bourchier, 

v.  Tew,      . 
Lowther  v.  Cavendish, 
v.  Conedon, 
v.  Lowther, 
Lloyd  v.  Johnes,  . 
v.  Loaring, 
v.  Mansell, 
v.  Branten, 
v.  Mason,    . 
v.  Williams, 
Lucas  v.  Evans,    . 

v.  Jefferson  Ins. 
Ludlow  v.  Hurd, 

v.  Lansing, 

v.  Simons, 

Luoton  v.  Lupton, 

328,  488,  499,  508,  520,  557,  565 


Co., 


284 


47 


364, 
160, 


514 
189 
126 
365 
163 
216 
638 
638 
531 
120 
241 
452 
90 


v.  White, 
Lvman  v.  Abeel, 

v.  U.  S.  Ins.  Co. 
Lyiuls  v.  Lynds, 
Lynch,  Matter  of, 
Lynch  v.  Richman, 

v.  Utica  Ins.  Co., 
Lyon  v.  Richards, 

M 

Maherly  v.  Turton, 
McAlister  v.  Montgomery, 
McArthur  v.  Hoysradt, 


'■>, 


363 
133 

76 
666 
684 

63 
239 

68 


627 
712 
239 


McCartee  v.  The  Orphan  Asvlum, 

525,571,572,580 
Macartney  v.  Graham,  .        53, 450, 452 

Macauley  v.  Philips,  ....  637 
McConnelly  v.  Hampton,  .  ,  ,  358 
McCorkle  v.  Brown,  .  .  .  .289 
McCoy  v.  Artcher,  ....  158 
McCrea  v.  Purmont,  ....  267 
McCulloch  v.  Daniel's  Adm's,  .  .  727 
McCullum  v.  Goarlay,  .        .        .     214 

McDermot  v.  Lawrence,        .        .        .     712 

v.  Strong,  .  .  .  .238 
McDonald  v.  Picket.  .        .         .101 

McDonough's  Ex'r  v.  Murdock,  .     583 

McDowell  v  Caldwell,  .        .        .627 

McDowell,  Matter  of,  .        .        .619 

McElderly  v.  Shipley,  69 

McEwen  v.  Montgomery  Mut.  Ins.  Co.  250 
McFarland  v.  Lewis,    ....    101 

v.Wheeler,  .  .  .  123 
McFerran  v.  Taylor,  ....  150 
McGalay  v.  Williams,  .  .     653 

Mclnstry  v.  Thurston,  .        .        .     306 

McKay  v.  Green,  487,  488,  520,  563,  508 
McKee  v.  Vorhees,  ....  348 
McKenzie  v.  Johnson,  .        .        .91 

McKinon  v.  Thompson,  .  .  .  484 
McKinstry  v.  Curtis,     ....    453 

v.  Marvin,  .  .  .  448,  455 
McKnight  v.  Morgan,  .        .        .  240 

McLachlan  v.  McLachlan, 
McLaren  v.  Pennington, 
McLean,  Matter  of, 
McLean  v.  McDonald, 

v.  Walker, 
McLeod  v.  Drummond, 
McMenomy  v.  Ferrers, 
McMurray  v.  Giftbrd,    . 

v.  Rawson, 
McQueen  v.  Farquar,    . 
McVickar  v.  Wolcott,    . 
McWhorter  v.  Benson, 
Mackell  v.  Winter, 
Mackreth  v.  Symonds, 
Madison  Co.  v.  Gould, 
Mahan  v.  Brown, 
Mairs  v.  Malbourn,     . 
Maitland  v.  Adair, 
Malcolm  v.  O'Callaghan, 

v.  Scott, 
Maiden  v.  Merrill, 
Malin  v.  Freeman, 

v.  Malin, 
Mandeville  v.  Mandeville, 

v.  Welch, 


Manhattan  Co.  v.  Reynolds 
Mann  v.  Mann, 

v.  March, 

v.  Copland, 

v.  Pentz, 
Manning  v.  Manning,    . 

v.  Spooner, 
Mansfield's  case, 
Marvin  v.  Ellwood, 
v.  Shaw,  . 
Marquand  v.  N.  Y.  Man.  Co 
Marine  Ins.  Co.  v.  Hodgson, 
Mark  v.  Cooper,   . 


4'.' 


.  535 
.  743 
.  689 
.  486 
.  456 
.  302 
.  404 
.  37 
.  86 
.  207 
.  161 
185,  603,  626 
.  515 

444,  299 
.  713 
.  395 
.  284 
.  509 
.  215 
.  464 
.  249 
.   79 

413,  609 

308,  329 
.  463 
.  257 

498,  512 
.  92 
.  501 

332,  7o3 
40,  184,  614 
.  564 
.  197 
316,317,318 
.  368 

718, 721 
57, 161 
.  137 


Table  of  C^ses. 


Mark  v.  Pell,  .  .  .  .  77,  429 
Mackenzie  v.  Mackenzie,  .  .  .  541 
Mackie  v.  Cairns,  ....     467 

Marlow  v.  Smith,  ....     419 

Marples  v.  Bainbridge,  .         .         .     531 

Marquis  of  Broadalbin  v.  Marchioness 

of  Chandos,  .        .      80 

Downshire  v.  Lady  Sanders,  372 
Exeter  v.  Marchioness  of  Ex- 
eter,       .        .        .        .80 
Townshend  v.  Stangroon, 

74,  206,  288 


Marriott  v.  Marriott,    . 
Mark  v.  Candiff, 
Marsh  v.  Lawrence, 

v.  Wheeler, 
Marshall  v.  Button, 

v.  Hopkins,    . 
Martin  v.  Ballou, 

v.  Drake, 

v.  Dwelly, 

v.  Martin, 
Martindale  v.  Booth,     . 
Marvin  v.  Bennett, 
Martinius  v.  Helmuth, 
Mason  v.  Jones, 
Mason,  Matter  of,    629 
Masters  v.  Masters, 
Mathews  v.  Aikin, 

v.  Terwilliger, 
Mattison  v.  Barns, 
Mawson  v.  Stack, 
Mayor  &c.  v.  Lowton, 

of  Albany  v.  Trowbridge 

of  York  v.  Pilkington, 

of  Hudson  v.  Thorne, 
Meach  v.  Lansing 
Meacham  v.  Sternes, 
Mead  v.  Dewy,     . 
v.  Lansing, 
v.  Merritt, 
Mechanics  Bank,  Matter  of, 
Mechanics  Bank  v.  Lynn, 
v.  Seton, 
Mechoud  v.  Girod, 
Medina  v.  Stoughton,  . 
Median  v.  Meehan, 
Meeker  v.  Van  Rensselaer, 
Melish  v.  Melish, 
Mendes  v.  Mendes, 
Mercein  v.  The  People, 

617,  618,  619,  620,  670 
Merrill  v.  Bell, 526 

v.  Emery,  ....     526 

Merrimack  Bank  v.  Brown,  .        .     101 

Merritt  v.  Classon,        .        .        .        .414 

v.  Lambert,  .  .  .  174,  443 
Merryweather  v.  Nixon,  .  .  .  107 
VIesick  v.  New,  ....    485 

Metcalf  v.  Harvey,        ....     323 
Methodist  Epis.  Church  v.  Jacques, 

479,  645,  649,  654 
Miall  v.  Brain, 551 


146 

.     161 

.      243,  458,  725 

512,  514,  519,  522 

.     651 

.     492 

.      82 

.     101 

.     652 

.    636 

.     244 

69,  72 

.    315 

492 

676,  677,  679,  680 

.    541,  557,  569 

111,  453 

68,  263 

458 

209 

734 

354 

324 

361 

76 

615 

608 


241 


185 


348 
470 
294 

249,  250,  608 
188,  605,  613 
.  159 
.  669 
.  390 
.  82 
620,  632 


Mickles  v.  Rochester  City  Bank, 
Middletou  v.  Dodswell 

v.  Rice, 
Miller  v.  Delamater,     . 
v.  Finton, 


750 
368 
633 
648 
107 


Miller  v.  Gable,    . 
v.  Kerr, 

v.  Miller,  .        .        .554,  556, 
v.  Plumb, 

Milhau  v.  Sharp,  .        .    405,  406, 

Milligan  v.  Mitchell, 
Millard  v.  Eyre,    . 
Miliken  v.  Carey,         .        .        .      37, 

v.  Tufts, 
Millington  v.  Fox, 
Mills  v.  Argall,     . 
v.  Banks,     . 
v.  Comstock, 
v.  Fowkes,  . 
v.  Freeman, 
v.  Goodsell, 
Milner  v.  Colmer, 
v.  Mitz,     . 
v.  Tucker, 
Millspaugh  v.  McBride 
Mil  ward  v.  Thanet, 
Minturn  v.  Farmers'  L.  and  T.  Co 

v.  Seymour, 
Minuse  v.  Cox,     . 
Mitchell  v.  Dall,  . 
v.  Harris, 
v.  Hayne, 
v.  Kingman, 
v.  Oakley, 
v.  Winslow, 
Mix  v.  Mix, 
Moffat  v.  Strong, 
Mogg  v.  Hodges, 
Moggridge  v.  Thackwell, 
Mohawk  Bridge  v.  U.  and 
Mohawk  Railroad  v.  Clute 
Mollan  v.  Griffith, 
Mondy  v.  Joliff,    . 
Monet  v.  Parke,  . 
Monk  v.  Cooper, 
Monson  v.  Morgan, 
Montagu  v.  Nuceila,     . 
Montgomery  v.  Johnson, 
Mooder  v.  Reid,   . 
Moody  v.  Payn,    . 
Mooers  v.  Waite, . 
Moore  v.  Cable,     . 
v.  Usher,    . 
Morehouse  v.  Cook, 
Morelow  v.  Armstrong, 
Morett  v.  Parke,  . 
Morgan,  Matter  of,       .     198 
Morgan  v.  Groff,  . 
v.  Marsack, 
v.  New-York  and  Albany 

road,    . 
v.  Plumb, 
v.  Schermerhorn, 
Morrell  v.  Dickey, 

v.  Morrell,    613,  614,  657 
Morris  v.  Burrows, 
v.  Colman, 

v.  Kent,    .        .        .536 
Morrison  v.  Moat, 
Morse  v.  Hovey, 

v.  Royal,    . 
Mortimer  v.  Capper, 
Mortlock  v.  Buller,  147,  204,  205, 


101, 


224, 


580, 
Railroad, 


316, 


143, 


,  679, 
214, 

Rail- 

451, 


660, 


537, 


589 
165 
667 
376 
739 
600 
470 
343 
,  94 
402 
715 
487 
431 
101 
580 
188 
637 
461 
157 

79 
295 
361 
263 
484 
382 
356 
319 
195 
347 
461 
666 
522 
569 
596 
392 
321 
567 
287 
339 

57 
163 
492 
734 

84 
723 
370 
446 
319 
622 

47 

46 
68S 
225 
315 

750 
452 
216 
558 
667 
545 
277 
557 
407 
361 
188 
266 
302 


Table  of  Cases. 


XXT 


Morton  v.  Naylor, 

463 

Moses  v.  Mead,    . 

158 

v.  Murgatroyd,  .          47, 

75,  77 

562 

Mosier  v.  Bishop  of  Durham, 

569 

Mosley  v.  Bird, 

512 

Moss  v.  Adams,    . 

.'      94 

101 

v.  Elmendorf, 

291 

v.  McCullough, 

752 

v.  Oakley,    . 

733 

752 

Mossop  v.  Eaden, 

53 

Mount  v.  Wait,     . 

225 

Mcantford  v.  Scott, 

250 

Movait  v.  Carlow, 

493 

494 

Mower  v.  Kip, 

440 

Muir  v.  Leake's  Trustees,     . 

116 

v.  Schenk,  . 

467 

Mumford  v.  Murray,    . 

613 

614 

v.  Nicoll, 

710 

Mundy  v.  Mundy, 

695 

Munroe  v.  Allaire, 

607 

Muusell  v.  Lewis, 

461 

Murdock  v.  Chenango  Mut.  Ins.  C 

o.,  120 

,  166 

Murkin  v.  Philipson,    . 

519 

Murray  v.  Ballou,        .     249,25 

2,  419 

608 

v.  Barlee,         .         .     64 

7,  651 

652 

v.  Bogert, 

718 

v.  Briggs, 

182 

466 

v.  Carter, 

45 

v.  Coster, 

425 

v.  De  Rottenham,     . 

615 

v.  Fenton, 

249 

v.  Gouverneur, 

310 

v  Livingston,  . 

445 

v.  Lord  Ellibank,     . 

637 

v.  Lylburn, 

466 

v.  Mumford,     . 

718 

v.  Murray, 

727 

v.  Tolland, 

142 

M  urrill  v.  Neill,    . 

727 

W  yers  v.  United  States, 

101 

\  ytton  v.  Mytton, 

669 

N 

Nairn  v.  Crouse,  . 

443 

Hation  v.  Tozer,  . 

156 

National  Bank  v.  Norton, 

718 

Neimcewicz  v.  Gahn,    . 

649 

Nellis  v.  Lathrop, 

129 

Nelson  v.  Corning, 

359 

Neville  v.  Wilkinson,    . 

213 

Nuvitt  v.  Gillespie, 

383 

Ncwburg  Turnpike  Co.  v.  Miller, 

393 

Newdegate  v.  Newdegate,     . 

372 

New  El  me  Hospital  v.  Andover,  . 

325 

New  England  Bank  v.  Lewis, 

B 

464 

Newkirk  v.  Newkirk,    . 

486 

Rewland  v.  Paynter,     . 

559 

Newman  v.  Johnson,     . 

, 

487 

v.  Miller, 

305 

Newport  v.  Kinaston,  '. 

540 

New  River  Co.  v.  Graves,     . 

324 

Newson  v.  Buffalow,    . 

80, 

301 

Newton  v.  Rose,  . 

55 

v.  Swazy, 

283 

New  York  Dry  Dock  Co.  v.  Amer 

.  Life 

Ins.  Co.     . 

347 

New  York  Fire  Ins.  Co.  v.  Ely.     . 

730 

Nichols  v.  Osborn,  ....  528 
Nicholson  v.  Halsey,  ....  425 
v.  Lcavit,  .  .  .  .246 
Nicoll  v.  Durenburg,  ....  354 
v.  Mumford,  .  .  464,  465,  720 
Norris  v.  Le  Neve,  ....  56 
North  Am.  Coal  Co.  v.  Dyett,       .    646,  647 

North  v.  North. 664 

v.  Pepper, 297 

Northern  Bridge  Co.  v.  London  and  S.  H. 

Railway, 405 

North  River  Bank  v.  Aymar,  .  .  250 
Northcote  v.  Duke,  ....  56 
Northup  v.  Barnum's  Ex'rs,  &c.,  .         .     648 

Norton  v.  Cook, 114 

v.  Coon,   ....     114,  115 

v.  Frecker 134 

v.  Stone, 599 

Noys  v.  Mordaunt,  ....  544 
Nutbrown  v.  Thornton,        .        .        .     271 

0 

Oakley  v.  The  Trustees  of  Williamsburgh, 

398 
Oates  v.  Jackson,  ....    494 

O'Brien  v.  Heeney,       ....     491 

0'Conde"s  case, 108 

O'Connor  v.  Spaight,  ....  91 
O'Keefe  v.  Dunn,  ....     359 

O'Malley  v.  Reese,  .  .  .  .214 
Odell  v.  Buck,     .        .     196,  197,  198,  201 

Ogilvie  v.  Hull, 128 

Ogden  v.  Kipp, 342 

v.  Gibbons,        .         .        .        .393 
Oliver  v.  Phelps,  .        .        .        -101 

v.  Piatt, 188 

Onions  v.  Tyler 80 

Ontario  Bank  v.  Walker,       .        .        .111 

v.  Worlhington, 
Osgood  v.  Franklin,  202,  203,  263,  266,  614 


v.  Osgood, 
Osborne  v.  B reman,      . 

v.  Duke  of  Leeds, 

v.  Moss,  . 

v.  Phelps, 

v.  Taylor, 

v.  U.  8.  Bank, 

v.  Williams,     . 
Osmond  v.  Fitzroy, 
Ostley  v.  Messere, 
Oppenheim  v.  Les  Wolf, 
Oswell  v.  Probert, 
Osterhout  v.  Shoemaker,   196,  19 
Otis  v.  Bill, 

v.  Wood, 
Otway  v.  Otway,  . 
Owens  v.  Collinson, 
Oxenden  v.  Oxenden, 


Padget  v.  Lawrence, 
Page  v.  Lcpingwell, 

v.  Parje, 
Paget  v.  Wilkinson, 
Pain  v.  Packard, 
Palcy  v.  Freeman, 


666,  667 
.  296 
.  540 

240.  337 
.  '  76 

342,  347 
.  408 
.  214 
198,  201,  671 
.  198 
.  319 
.  636 

198,  675 

356,  453 
.  458 
.  662 
.  107 
.  636 


256 
496 
512 
159 
111 
149 


Eq.  Jur. 


Table  of  Cises 


Palmer  t.  Fletcher, 

394 

v.  Gurnsey, 

432 

v.  Mulligan, 

357 

v.  Neave, 

213 

v.  Palmer, 

668 

v.  Trevor, 

559 

Pardee  v.  Van  Anken, 

446, 

447 

Parish  v.  Stone,    . 

553, 

555 

Parker  v.  Browning,    . 

334, 

335 

v.  Foote,  . 

395 

v.  Pistor, 

721 

Parkist  v.  Alexander,  .      48,  172,  186, 

255 

Parkhurst  v.  Van  Cortland, 

283,  285, 

286 

Parkinson  v.  Lee, 

152 

Parks  v.  Parks,    . 

.'    419, 

493 

Parnell  v.  Lyon,  .         . 

526 

Parr  v.  Eliason,    .        '. 

,        . 

222 

Parsons  v.  Barnard, 

,        . 

384 

v.  Hughs, 

,        , 

169 

v.  Winslow, 

#        . 

532 

Partridge  v.  Menck, 

.     383, 

403 

v.  Stevens,     . 

639 

Patchin  v.  Pierce, 

'.    457, 

458 

Paton  v.  Rogers, 

296 

Partridge  v.  Menck, 

206 

Patterson  v.  Bangs, 

161 

v.  Ellis, 

516,  517 

522 

Pattison  v.  Blanchard, 

709 

v.  Hull,  . 

94,  98, 

462 

Payne  v.  Cutler,  . 

. 

257 

v.  Eden,     . 

.     182, 

210 

v.  Matthews, 

193,  560, 

719 

Peacock  v.  Evans, 

178,  179, 

203 

Pearce  v.  Cruchfield,    . 

369 

v.  Verheke, 

80 

Pearson  v.  Pearson, 

, 

555 

Pearley  v.  Somerset,    . 

58 

Peck  v.  Ellis, 

106, 

107 

v.  Jenness, 

123 

v.  Mallam,  . 

254 

Pecket  v.  Lyon,    . 

, 

206 

Peckford  v.  Peckford,  . 

668 

Pegram  v.  King, 

, 

357 

Peish  v.  Dickson, 

125 

Pelletreau  v.  Rathhone, 

500 

Pemberton  v.  Oakes,     . 

102 

v.  Pemberton,     . 

145, 

146 

Pendleton  v.  Fay, 

445 

Penfould  v.  Bouch, 

, 

471 

renniman  v.  Briggs,     . 

733 

Penn  v.  Lord  Baltimore, 

270 

Penny  v.  Martin, 

57 

Penruddock's  case, 

392 

People  v.  Earnes, 

. 

560 

v.  Chegary, 

. 

618 

v.  Clark,    . 

, 

166 

v.  Corlies, 

, 

560 

v.  Erwin,  . 

, 

390 

v.  Jansen, 

,        # 

111 

v.  Manning, 

, 

526 

v.  Mercein, 

618 

v.  Stevens, 

366 

v.  Tioga  Com.  Pleas, 

. 

462 

v.  Utica  Ins.  Co., 

730 

Percival  v.  Blake. 

157 

v.  Phipps, 

386 

Perine  v.  Dunn,   . 

450, 

452 

Perket  v.  Laggoon, 

. 

206 

I  Perkins  v.  Bradley 250 

v.  Cottrell 640 

v.  Hart,   .'        .        .        .        .142 
Perkins,  Matter  of,  681,  682 

Perrin  v.  Lyon,  ....     52fc 

Perrot  v.  Perrot,  ....     139.  381 

Perry  v.  Aaron, 157 

v.  Baker, 451 

v.  Jackson,  ....     190 

v.  Martin,    .        .        .        .        70,  71 

v.  Perry,  659,  660,  662,  663,  668 

v.  Rhoades,  ....    514 

Peter  v.  Beverly,  .         .         .271..  487 

Peters  v.  Anderson,       .         .         .90,  101 

Peterson  v.  Clark,        .        .    379,  428,  429 

Petit,  Matter  of,    .        .        .        .     681,  685 

Petit  v.  Shepherd,        .        .        .        .304 

Peto  v.  Blades, 159 

Petrie  v.  Shoemaker,    .        .     197,201,675 

Phelps  v.  Green, 705 

Philips  v.  Berger,  .  .  267,  275,  276 
v.  Philips,  .  .  .  .712 
v.  Thompson,  .      45,  284,  286,  309 

Phillips  v.  Cook, 723 

Phipps  v.  Annesly,  .  .  .  .330 
Plank  v.  Schermerhorn,  .  .  234,  218 
Plant  v.  Long  .Island  Railroad,     .     406,  740 

Plume  v.  Beale, 146 

Plunkett  v.  Penson,  .        .     108 

Pidcock  v.  Bishop,  .  .  .71,  151 
Piddiug  v.  Howe,  ....     403 

Pierpont  v.  Barnard,  ....  213 
Pillsworth  v.  Hopton,  .         .        .        .383 

Pine  v.  Dyer 289 

Pink  v.  De  Thuesey,  .  .  .  .523 
Pitt  v.  Chelmondeley,  .  .  .  .142 
Pitts  v.  Waugh,  .  .  .  .  .712 
Pocock  v.  Reddington, ....  613 
Polk's  Lessees  v.  Wendell,  .  .  165,  166 
Pomroy  v.  Smith,  ....  725 
Pond  v.  Bergh,    .        .    483,  484,  485,  492 

v.  Curtis, 624 

Pope  v.  Curl, 386 

Popham  v.  Bamfield,  ...  56,  57 
Popkin  v.  Popkin,        ....     662 

Pooley  v.  Ray, 70 

Porter,  case  of,     .        .        .        .    571,  603 

Porter  v.  Clark, 246 

v.  Spencer,  ;        90,  91 

Portarlington  v.  Soulby,       .        .        .     225 

Portman  v.  Mills,  .         .         .         .296 

Post  v.  Bank  of  Utica,         .      46,  144,  221 

v.  Dart,        .        .        .        .221,  303 

v.  Kimberly,        .        .      90,  193,  709 

Postmaster  Gen.  v.  Furber,  .        .        .100 

v.  Norvell,  .        .        .100 

Potter  v.  Chapin,      571,  581,  582,  583,  588 

v.  Chapman,      ....     341 

v.  Smith 109 

Powell  v.  Hankey,        .        .        .        .292 

v.  Mathis, 108 

Powlet  v.  Powlet,         .        .        .        .518 
Pratt  v.  Adams,   .                         .47,  280 
v.  Carroll,    .                         .  292 
v.  Law,        .                                  .     309 
Presbyterian  Congregation  of  Salem  v.  "Wil- 
liams,        213 

Prescott  v.  Hull,  .....    462 


Table  of  Cases. 


Prescott  v.  Long, 

, 

513 

Rew  v.  Barber,     . 

.     158 

Preston  v.  Tubbin, 

252 

Reynish  v.  Martin,       .        .     501,   519,  52S 

Prevost  v.  Gratz,  . 

188 

Reynold  v.  Cleveland, 

.    709 

Prieliard  v.  Ames, 

559 

Reynolds,  Ex  parte, 

.     172 

Pringle  v.  Wernham,    . 

396 

Reynolds  v.  McFarlane , 

.     100 

Prowse  v.  Abingdon,    . 

.'    519 

521 

v.  Reynolds, 

.    704 

Providence  Bank  v.  Billings 

730 

Rex  v.  Grosvenor, 

.     398 

Pugh  v.  Currie,    . 

712 

v.  Papineau, 

388,  390 

v.  Smith,    . 

545 

v.  White, 

.     394 

v.  Good, 

283 

Rhoads  v.  Canfield, 

.    438 

Pulteney  v.  Warren,     . 

.'    134 

695 

Rhodes  v.  Rhodes, 

.     284,  285 

Purdy  v.  Doyle,   . 

.     338 

562 

Rice  v.  Pelt, 

.     195 

Purse  v.  Snaplin, 

557 

Richard  v.  Salter, 

.     315 

Pusey  v.  Pusey,  . 

272 

Richardson  v.  Duncan, 

.     208 

Putnam  v.  Ritchie, 

310,  311, 

312 

Richmond  v.  Taylor,    . 

.     160 

v.  Wise,  . 

709 

Rider  v.  Wager, 

.     544 

Pybers  v.  Smith, . 

647 

Ridgway  v.  Darwin, 
Ridout  v.  Paine, 

.    681 

.      77 

Q 

Ries  v.  Berrington, 
Ringo  v.  Binns,. 

.     109 
.     190 

Quackenbush  v.  Leonard, 

. 

188 

Ripley  v.  Waterworth, 
Ripon  v.  Hobart, 

.     561 
400,  401 

E 

Roach  v.  Casine, 
Roadly  v.  Dixon, 

.       74 
.     551 

Rackley  v.  Pearce, 

. 

101 

Roberts  v.  Anderson, 

.     341 

Racklev,  In  re, 

174 

v.  Dixwell, 

.     475 

Radcliffv.  Bulkley,      . 

494 

v.  Garnie, 

.      92 

Radcliifs  Ex'rs  v.  Mayor  of 

Brooklyn, 

402 

v.  Kuffin, 

.     142 

v.  Parkins, 

545 

v.  Pocock,       .        .    50 

2,  507,  558 

v.  Rowley, 

470 

v.  Roberts, 

.     213 

Ramsbottom  v.  Gordon, 

. 

288 

Roberts,  Ex  parte, 

.     185 

Randall  v.  Cook, 

243 

Robertson  v.  Bullions, 

v.  Panamore, 

101 

472,  573,  588,  589,  7 

32, 736,  742 

v.  Philips, 

•     77, 

240 

v.  Lane, 

.    691 

v.  Randall, 

74 

v.  McNiel, 

.      71 

Ranelaugh  v.  Hays, 

!     108, 

331 

Robinson  v.  Comyns, 

.     527 

Rapelye  v.  Anderson,  . 

224 

v.  Doolittle, 

.     101 

v.  Prince, 

448 

v.  Frost, 

.     109 

Rathbone  v.  Clark, 

454 

v.  Litton, 

379,  381 

Rathbuu  v.  Warren,             i 

7,  90,  109, 

164 

v.  Pettinger, 

.     396 

Rawdon  v.  Shadwell, 

225 

v.  Pitt, 

.     184 

Ray  v.  Bogart,     . 

144 

Rochester  City  Bank  v.  Suydam, 

.      37 

Raymond  v.  Loyl, 

.        . 

626 

Rodman  v.  Smith, 

.     751 

v.  Sellick, 

555 

Rodriquez  v.  Heffernan, 

.    720 

Rayner  v.  Martin, 

215 

Rogers  v.  Atkinson, 

.      80 

Reab  v.  Moore, 

131 

v.  De  Forest,    . 

.     246 

v.  McAIister, 

354 

v.  Dell, 

.     629 

Read  v.  Brookman, 

51 

v.  Nevill, 

.     404 

Reade  v  Livingston, 

!     228, 

483 

v.  Rathbone,    .        .       4 

6,  303,  216 

Receiver  City  Bank  of  Buffa 

o,  Matter  of, 

v.  Rogers, 

494,  568 

753 

v.  Saunders,     . 

263,  267 

Reed  v.  Bank  of  Newburgh, 

# 

304 

Rolf  v.  Peterson,  . 

.      55 

v.  Blades,    . 

244 

Roome  v.  Weeb,  . 

.     343 

v.  Board  man, 

101 

Roosevelt  v.  Thurman, 

.      78 

v.  Dickerman, 

548 

Rosa  v.  Brotherson, 

.    257 

v.  Norris,     . 

190, 

604 

Rose  v.  Rose,       .... 

56,  666 

Reeves  v.  Capper, 

459 

Ross  v.  Crary,      .... 

.    561 

v.  Hogan, 

163 

Rosseau  v.  Call,  .... 

.     101 

ftoid  v.  Gilford,    . 

'.     326 

327 

Rouse  v.  Noble,    .... 

.     329 

v.  McNaughton, 

.     190 

728 

Rowley  v.  Ball,    .... 

.      53 

ficigal  v.  Wood, 

160 

Ruggles  v.  Holden,      .        . 

.     113 

Reinecker  v.  Smith, 

201 

Rumfus  v.  Platnir, 

.     608 

Rensen  v.  Rensen, 

139 

Runyan  v.  Mersereau,          .        , 

445,  452 

Reiuicr  v.  Bank  of  Columbia 

i, 

54 

Rushloy  v.  Mansfield,  .         . 

.     197 

Reno's  Ex'rs  v.  Davis, 

490 

Russell  v.  Allen,  . 

.    453 

Rensselaer  and  S.  R.  R.,  Mat 

terof,    117, 

118 

v.  Austin, 

.    425 

Renwick  v.  Renwick, 

669 

v.  Butterfield,  . 

.    457 

Respublica  v.  Caldwell 

399 

v.  Clapp,  . 

.      37 

Table  of  Cases. 


Russell  v.  Russell, 

.    4401 

Shallcross  v.  Findon, 

v.  Southard,     . 

77  1 

Shaver  v.  McGravv, 

Russel,  Matter  of, 

682,  683,  688 

Shaw  v.  Borrer, 

Rust  v.  Gott, 

.     225 

v.  Coster,    . 

v.  Law, 

.     117 

Shee  v.  Hale, 

Ryan  v.  Macmeth, 

.     308 

Sheldon  v.  Fortescue,  . 

Ryder,  Matter  of, 

.    626 

Shelly  v.  Nash,     . 

Shepard  v.  Shepard,     . 

s 

Shirras  v.  Caig,    . 

Shepherd  v.  Monroe,    . 

Sacket  v.  Giles,    ....    669,  670 

v.  McEvers, 

Salisbury,  Matter  of, 

.    685 

v.  Pybus, 

Salisbury  v.  Marshall, 

.     156 

v.  Wilson,    . . 

Salmon  v.  Bennett, 

.    236 

Sherman  v.  Ballou, 

Salway  v.  Salway, 

.    639 

Sherwood  v.  Vandenberg, 

Samlee  v.  Hanman, 

.     210 

v.  Philbrick, 

Samuell  v.  Howarth,    . 

.     109 

Shirley  v.  Martin, 

Sanders,  Matter  of, 

.    494 

v.  Shirley, 

Sanders  v.  Pope, 

.      56 

Shoemaker  v.  Benedict, 

Scnderson  v.  Walker,   . 

.     188 

Sholl  v.  Shod,      . 

v.  White, 

573,  593 

Shore  v.  Wilson,  . 

Sandford  v.  Handy, 

.    250 

Shottenkirk  v.  Wheeler, 

v.  Jackson 

.    551 

Shotwell  v.  Mott, 

v.  McLean, 

.     Ill 

v.  Murray, 

v.  Mikles, 

.     727 

Shrewsbery  v.  Shrewsbery, 

Sands  v.  Codwise, 

182,  214 

Sibley  v.  Cook,     . 

v.  Hildreth, 

226 

v.  Perry,    . 

Sandon  v.  Hooper, 

.    446 

Sigourney  v.  Munn, 

Sanger  v.  Eastwood, 

.    458 

Simmons  v.  Tongue,    . 

Sanquirico  v.  Benedett 

, 

.    277 

Sims  v.  Doughty, 

Sarles  v.  Sarles,   . 

.     139 

Simpson  v.  Hart, 

Sarly  v.  Elmore, 

.     Ill 

v.  Ingham,     . 

Saterlee  v.  Frazer, 

.     174 

v.  Vaughn,     . 

Saul  v.  Kruger,    . 

.    726 

v.  Vickers, 

Saunders  v.  Smith, 

.    385 

Skeel  v.  Spraker, 

Savage  v.  Brocksopp, 

.     302 

Skinner  v.  Dayton, 

Saville  v.  Saville, 

.     125 

Skip  v.  Harwood, 

Sawyer  v.  Tappan, 

.     101 

Slade  v-  Van  Vechten, 

Sayer  v.  Sayer,     . 

.    503 

Slaney  v.  Sidney, 

Schiefflin  v.  Stewart, 

.     172 

Slanning  v.  Style, 

Schmidt  v.  Hoyt, 

.     255 

Slater  v.  Lawrence, 

Schermerhorn  v.  Negus, 

•     534 

Slee  v.  Bloom,     .        .     7 

Schoonmaker  v.  Sheely, 

.     475 

v.  Manhattan  Co., 

Schryver  v.  Teller, 

.    454 

Small  v.  Brackly, 

Scott  v.  Tyler,      . 

.    215 

v.  Smith,   . 

Scrughan,  Matter  of,    . 

.    447 

Smedberg  v.  Moore, 

Scrugan  v.  Carter, 

.    724 

Smith  v.  Acker,  . 

Sea  Ins.  Co.  v.  Stebbins, 

.    334 

v.  Argall, 

Seaman  v.  Waddington, 

.    718 

v.  Ballantine,     . 

Seaving  v.  Brinckerhoff, 

.    467 

v.  Bruning, 

Sears  v.  Shaffer, 

170,  178 

v.  Carl, 

Sebring  v.  Messereau, 

.     704 

v.  Cawdry, 

Sedgwick  v.  Fish, 

.    452 

v.  Collyer, 

Seeley  v.  Fisher,  . 

.     401 

v.  De  Silva, 

Segus  v.  Tingley, 

.      72 

v.  Doe, 

Seixas  v.  Woods, 

.     157 

v.  Hartwell, 

Seklen  v.  Vermilyea, 

.    422 

v.  Jackson, 

Selkrigg  v.  Davies, 

.     712 

v.  Jones, 

Sellick  v.  Turnpike  Co 

.     101 

v.  Kane,    . 

Selwood  v.  Mildmay, 

.'    49 

6,  503,  505 

v.  Kearny, 

Seton  v.  Slade,     . 

267,  271 

v.  Kniskern, 

Seward  v.  Jackson, 

.     230 

v.  Lockwood,     . 

Sexton  v.  Wheaton, 

.     230,  234 

v.  Lowry, 

Seymour  v.  De  Lancy, 

v.  Marable, 

152,  203,  262,  264,  2^6,  280 

v.  McGowan, 

290,  295,  297,  303 

v.  Paige,    . 

v.  Marvin,     ....     101 

v.  Parkhurst, 

T.  Strong, 

. 

. 

.     223 

v.  Richards, 

733, 
77, 


488,  565 
.  694 
.  486 
.  320 
.  527 
.  163 
.  181 
.  648 
.  437 
.  108 
.  249 
.  156 
.  131 
.  622 
.  694 
.  434 
.  213 
.  559 
.  728 

50S,  509 
.  509 
.  163 

583,  588 

63,  68 

.  125 

.  511 

.  507 

.  712 

.  104 

83,  493 

161,  162,  163 

.  101 

:4,  76,  720 

57,  534 

.  454 

56,  717 

.  332 

.  188 

.  318 

329,  330 
.  191 
740,  741,  744 
428,  429,  448 
.  210 
.  257 
.  292 

243,  245 
.  715 

193,  719 
.  608 

146,  305 
.  527 
.  382 
.  710 
.  496 
.  359 
.  712 
.  712 
.  639 

240,  566 

547.  551 

406  407 
161.  357;  358 
.  156 
.  51 
.  351 
.  68 
.  ISO 


Table  of  Cases 


XXIX 


Smith  v.  Rockwell, 

T'?2?£;87,616,  510,  654,656,618, 

633,704,  711- 
v.  Souven, 


97,  98 


.   ioi 

.    286 

711,  ?16,  717 

.    257 

•    712 
.    GG4,  565 


99, 
243, 


Co. 


. ,  Stewart, 

v.  Tarlton, 

t.  Van  Loan, 

v.  Wood,   . 

v.  Wyckoff, 

Smith,  Matter  of,  • 

Smits  v.  Williams,        • 

Bnediker  v.  Pearson,    . 

Snellv.  Dee,         . 

v.  Moses,      •  ,.q^ 

Snowden  v.  Noah,        •        •        •    (.^' 
Snyder  v.  Snyder,         .         •         ■  ' 

v.  Sponable,     .        ■         ■    Zo6> 
V.Stafford,        . 
Souven  v.  Joyner,        .        •         •         ' 
Spader  v.  Davis,  •        •        •    -     > 

Spafford  v.  Manning,    .         •         ■ 
Sharks  V.Liverpool  Water  Works,       . 

Spear  v.  Cutler,  •  ' 

v.  Myers, 
Spencer  v.Harwood, 
v.  Spencer, 
Sperry  v.  South  Carolina  Ins 
Spraaue  v.  Duell, 
Sprigwell  v.  Allen, 
Staats  v.  Ilowlett, 
Stackpole  v.  Beaumont, 
v.  Healy, 
v.  Howell,     . 
Stafford  v.  Van  Rensselaer, 
Stag?  v-  Jackson, 
Stalker  v.  McDonald,    . 
St.  Andrews  Church  v.  Tompkins^  ^  ^ 

Stapilton  v.  Stapilton,  . 

Staple  v.  Story, 

Stapleton  v.  Cheele,      . 

Starr  v.  Schuyler, 

Starrett  v.  Barber,        •        •..*«„ 

State  of  Penn.  v.  Wheeling  Bridge  Co.      ^ 

Stead  v.  Clay,      . 
Stebhins  v.  Walkly,      . 
Steere  v.  Steere, 
Steinman  v.  Magnus,    . 
Sterubergh  v.  Schoolcraft, 
Stenv  v.  Arden,  . 
Stevens  v.  Cooper, 
v.  Lynch, 
v.  Savage, 
Stevenson  v.  Lambard, 
v.  Maxwell, . 
Stewart  v.  Graham, 


Co. 


Co 


91, 


434, 
525, 
544, 


St.  John  v.  St,  John,    . 
Stone  v.  Damon, 
v.  Moody, 
v.  Seymour, 
Stoney  v.  Shultz, 
Stodard  v.  Butler, 
Storer  v.  Freeman, 

v.  Great  Western  Railway 
v.  Hunter, 
Storey  v.  American  Life  Ins 

v.  Lord  Windsor, 
Storkley  v.  Storkley,    . 
Storm  v.  Mann, 
Story  v.  Baker, 
v.  Brown, 
Stoughton  v.  Lynch,     . 
Stow  v.  Tifft, 
Strange  v.  Smith, 
Streatfleld  v.  Streatfield, 
Strathmorev.  Bowes,    . 
Stratton  v.  Grimes, 

v.  Best, 
Strickland  v.  Strickland, 
Strode  v.  Russell, 
Strong  v.Holmes,         .        ■ 

v.  The  Trustees  of  Mitchell, 
v.  Skinner, 

246,  479,  635,  643,  644,  646, 
Stuart  v.  Kissam, 
Sturgis  v.  Champneys, 
Sturtevant  v.  Ballard, 
Stuyvesant  v.  Davis,     . 

v.Hall,        .        •        ■ 
v.  Mayor  of  New- York, 
v.  Pearsall, 
Sullivan  v.  Turk, 
Sutherland  v.  Briggs, 
Sutphen  v.  Fowler, 


608 

199 

161 

100 

454 

468 

495 

277 
244 
359 
256 
198 
383 
63 
141 
142 
437 
527 
545 
481 
215 
545 
695 
496 
169 
429 


636, 


269, 


267, 
270, 


v.  Hutchins,    . 

v.  Lispenard,   . 

v.  Lambee, 

v.  McMartin, 

v.  Small, 

v.  The  Trustees  of 
lege, 
Stickney  v.  Jewell, 
Stief  v.  Hart, 
St.  John  v.  Benedict, 


196, 


Hamilton  Col 

.    258 
.    614 

725,  726 
263,  266,  297,  600 


Sutton  v.  Dillaye, 
v.  Temple, 
Swaim  v.  Ferine, 
Swart  v.  Servin, 
Swartout  v.  Burr, 
Sweet  v.  Chase, 
v.  Sweet, 
Swift  v.  Tyson,     . 
Sykes  v.  Halstead, 


Taber  v.  Taber,    . 
v.  Grover,  . 
Tanner  v.  Trustees  of  Albion 

v.  Wise,    . 
Tate  v.  Hilbert,    . 
Tattersall  v.  Howell, 
Tuxbury  v.  Miller, 
Taylor  v.  Allen,   . 

v.  Ashton, 

v.  Carpenter, 

v.  Diplock, 

v.  Fields,  . 

v.  Fleet,    . 

v.  Jones,  . 

v.  Lovingworth 

v.  Neville, 

v   Rudd,  . 


'.    695,  696 

74 

270,  271,  299 

.     49? 


257 


687 

478 

637 

241 

135 
454 

,277 
739 
276 

,  287 
610 
727 
153 
697 
429 
610 
514 
627 
359 
653 


206 


.  444 

.  444 
388,  390 
.  307 
553,  554 
.  524 
.  210 
.  308 
.  150 
402,  403 
.  509 
.  722 
.   70 
227,  238 
.  280 
.  £73 
.   74 


txx 


Table  of  Cases. 


Taylor  t.  Sandiford, 

v.  Wheeler, 
Tavlor,  Matter  of, 
Teal  v.  Woodworth,  .  .  .  197, 
Teague  v.  Dendy,  .  .  .  614, 
Tenham  v.  Herbert,  .  .  .  323, 
Tenville  V.  Nash,  . 
Terrett  v.  Taylor, 
Terry  v.  Terry,     . 

Thellusson  v.* Woodford,  424,  491,  544 
Theological    Seminary  of  Auburn  v. 

Cbilds,     . 
Thomas  v.  Howell, 

v.  Oakley,       .        .        .    139, 

v.  Porter, 

v.  Stevens,      .         .         .81, 

Thompson  v.  Attfield, 

v.  Brown, 

v.  Ebbetts, 

v.  Graham,  .     160,  169, 

v.  Lockwood, 
Thorndyke  v.  Arlington, 
Thorpe  v.  Jackson,       .         .        .     192, 
Thornton  v.  Dixon, 
Threlfall  v.  Lunt, 
Thurston  v.  Percival, 
Tibbits  v.  Tibbits, 


Tice  v.  Anin, 
Tidwell  v.  Ariel,  . 
Tiernan  v.  Jackson, 
Tiffi  v.  Porter,      . 
Tilghan  v.  Tilghan, 
Elton  v.  Tilton,    . 
Tinker  v.  Ball,      . 
Tipping  v.  Clarke, 
Tickell  y.  Short,  . 
Tisdale  v.  Grant,  . 
Titus  v.  Neilson,  . 
Toche  v.  Atkins,  . 
Todd  v.  Barlow,   . 
Toilet  v.  Toilet,    . 
Tom  v.  Goodrich, 
Tompkins  y.  Fonda, 

v.  Tompkins 

v.  Wheeler, 
Toplis  v.  Barker, . 
Torrey  v.  Bank  of  Orleans, 
Toulniin  v.  Price 
Toussaint  v.  Martenant 
Town  v.  Needham 
Town-end  v.  Ash. 

y.  Be  Vaynes, 

v.  Westcott, 
Tracy,  flatter  of, 

677,  681,  68 
Traver  v.  Traver, 
Treate  v.  Cole, 
Troop  v.  flaight, . 
Trott  v.  Vernon,   . 
Truly  v.  Wanzer, . 
Trumbull  v.  Gadsden 
Truscott  v.  King, . 
Trustees  of  Huntington  v.  Nicoll 
Trustees  &c.  v.  Lawrence,    . 
of  Vernon  v.  Hills, 
of  Watertown  v.  Cowen 
Tucker  v.  Wilson, 
Tulk  v.  Hoklitck, 


449, 


605, 


133, 


2,  683,  684, 


101 
74 
685 
701 
627 
324 
253 
578 
613 
545 

576 
528 
382 

58 
492 
263 
561 
316 
361 
208 
134 
193 
711 
306 
174 
546 
453 
510 
463 
506 
143 
283 
514 
407 
142 
105 
433 
210 
164 

83 
109 
2:;'.' 
665 
465 
511 
612 

53 
109 
701 
134 
711 


688 

146 
135 
142 
488 
356 
150 


325,  327 
720 
744 
398 
456 
534 


Turning  y.  Morrison,    . 
Tunno  v.  Trezevant,     . 
Tupper  v.  Powell,  . 
Turner  v.  Richmond,    . 

v.  Turner, 
Tumival  v.  Crew, 
Tunstall  v.  Trappes, 
Turrell  v.  Turrell, 
Tuttle  v.  Jackson, 
Tyler  v.  AVebb,  . 
Tyrringhanvs  case, 
Tyson  v.  Watts,  . 
Twync's  case, 

u 

TJdall  v.  Kinney, 

Ulrich  v.  Litchfield, 

Underbill  v.  Dennis, 

v.  Harwood,  . 

United  States  v.  Bradley, 
y.  Burford, 
y.  Dabourge, 
v.  Hitchcock, 
v.  Hoe,  . 
v.  Kirkpatrick 
y.  Myers, 

Upham  v.  Lefavour, 

Utterson  y.  Mairs, 

V 


205 
.  104 
46,  303,  216 
.  46 
.  629 
.  278 
.  440 
559,  636 
.  253 
.  441 
.  132 
.  267 
.  468 


631,  636,  645 
82,  83 
.  622 
76,  203 
.  101 
.  460 
.   91 
.  297 
437,  4GG 
94,  100 
.  101 
.  101 
336,  368 


Valentine  v.  Valentine,         .        .  .     143 
Valiant  v.  Diomede,     ....     135 

Van  Duvne  v.  Thavers,         .         .  .     696 

Vance  v.  Philips,          .         .     243,  248,  468 

Vane  v.  Barnard, 139 

y.  Lord  Bernard,          .         .  .371 

Van  Aemam  v.  Van  Aernam,        .  .     659 

Van  Alstyne  v.  Speaker,      .        .  4S5,  486 

Van  Bergen  v.  Van  Bergen,          .  .     383 

Van  Buren  v,  Olmstead,       .        .  429,  448 

Van  Brakliny.  Fonda,           .         .  .     158 

Van  Colt,  Matter  of,     .         .         .  .     632 

Van  Cortland  v.  Underbill,   .         .  .     164 

Van  Derheyden  y.  Mallory,  .         .  645,  651 

Van  Deckar  v.  Van  Deckar,          .  .     loo 

Vanderpoel  v.  Van  Valkenburgh,  .     1-16 
Vanderzee  v.  Adorn,    ....     207 

Vanderkemp  y.  Skelton,       .         .  .     453 
Vandervoort  v.  Smith, ....     357 

Vandervolger  y.  Yates,          .         .  .     582 

Vandoran  v.  Mayor  of  N.  Y.,        .  .    306 
Vauduzer  v.  Vanduzer, 

631,  636,  639,  640,  653,  G69 

Vandyck  v.  Hewitt,      .         .         .  .214 

Van  Epps  y.  Dillaye,    .        .        .  .718 

y.  Harrison,          .         .  .     354 

v.  Van  Epps,    188,  189,  605,  612 

y.  Van  Duzen,      .     659,  636,  637 

Van  Keuren  v.  Pannelee,     .        .  .     728 

Van  Orden  y.  Van  Orden,     .        .  553,  698 

Van  Rensselaer  v.  Bradley,  .        .  .     130 

v.  Gallup.             .  .     130 

v.  Jones,      .        .  129,  130 

v.  Kidd,        .         .  .  '  362 

v.  Morris,     .         .  U6 

v.  Radcliff,  .  .133 


Table  of  Cases. 


XXXI 


Van  Rensselaer  v.  Stafford,  .  .  .  4-38 
Van  Home  v.  Fonda,    .        .        .        .190 

v.  Everson,  .         .         .37 

Van  Sickle  v.  Van  Sickle,  .  .  .642 
Van  Wyck  v.  Alliger,  .        .        .        .379 

v.  Seward,  .        .231,  233,  234 

Vail  v.  Vail, 483 

Van  Vechten  v.  Van  Veghten,  424,  484,  660 
Van  Winkle  v.  Curtis,  .  .  .  .382 
Veech  v.  Pennilake,  ....  161 
Vegers  v.  Pike,  .....  266 
Vergne,  De  La,  v.  Evertson,  .  .  440 
Verplanck  v.  The  Mercantile  Ins.  Co., .     333 

v.  Sterry,        .        .        229,  234 
Vidal  v.  Girard's  Ex'rs,         .     571,  583,  584 

Viele  v.  Osgood, 735 

Vilas  v.  Jones,      .         .         .46,  114,  221 
Viscountess  of  Montacute  v.  Maxwell,  .     289 
Voorliies  v.  Presbyterian  Ch.  of  Am- 
sterdam,     735 

Vroom  v.  Ditmas,        .        .        .    447,  448 


w 

Waddell  v.  Cooke, 
Wadsworth  v.  Pacific  Ins.  Co. 
Wager,  Matter  of, 
Wagman  v.  Hoag, 
Wait  v.  Day, 
v.  Wait, 
Waldron,  Matter  of, 
Walker  v.  Devereux, 

v.  Sherman, 

v.  Wetherell, 

v.  Whateley, 
Waller  v.  Harris, 
Wallop  v.  Hewett, 
Walmeslev  v.  Booth, 
v.  Child, 
Walsh  v.  Adams, 
Walton  v.  Cronly, 

v.  Walton, 
Ward v  Baugh, 
v.  Kilts,     . 
v.  Turner, 
v.  Ward, 
Wardell  v.  Eden, 
W  ardwell  v.  Haight, 
Warren  v.  Beardsley, 
Warner,  Ex  parte, 
Warren  v.  Van  Alstyne 

v.  Baynes, 
Warren,  Ex  Parte, 
Warring  v.  Warring, 
Warwick  v  Warwick, 
Washburn  v.  Merrills, 
Waterbery  v.  Sfurtevant, 
Waters  v.  Howard, 

\    Stewart, 

v.  Taylor, 

v.  Travis, 

v.  Vorke, 

Watkins  v.  Baird, 

v.  much, 

i  Iheek, 

Watson  v.  Hunter, 

v.  Le  Row, 
Watts  v.  Brooks, 


724,  726 
.  122 
682,  688 
111,  113 
601,  602 
.  659 
.  618 
208,  342 
.  378 
.  627 
.  289 
.  342 
.  540 
.  178 
.  53 
721,  724,  720 
74,  429 
503,  504,  506 
545 
6!  5 
554 
304 
460 
718 
112 
441 
698 
704 
690 
661 
250,  609 
74 
148 
276 
4.::; 

721 

,  296,  298 

369 

208 

244 

520 

370,  371 

239,  610 

.     214 


28 


Watts  v.  Coffin,    .  .     131 

v.  Waddle,  ,  292 

Webb  v.  Earl, 472 

v.  Rice,       ...         74,  75,  429 

v.Webb 524 

Webster  v.  Milford,      ....     545 
v.  Hale,  .        .        .        .506 

v.  Woodford,  .        .        .195 

Weed  v.  Bentley 151 

Welby  v.  Welby,  .        .        .      545,  546 

Welch  v.  Carter,  .        .        .         .158 

Welland  Canal  v.  Hathaway,  .  .  213 
Welleslev  v.  Beaufort,  618,  624.  628,  670 
Wells  v.  Smith,  .  .  ,  . '  295,  296 
Wend  v.  Jekvl,  .....  498 
Wendell,  Matter  of,  .  .  677,  679,  682 
Wesley  Church  v.  Moore,  ...  49 
Wesley  v.  Thomas,       .  301 

West  v.  Walker.  .        .        .        .382 

Westbourn  v.  Mordant,  .  .  .  392 
Westcottv.  Cady,  .  .  .  .490 
Western  Corporation  v.  Babcock,  278,  279 
Western  v.  Russell,  ....  266 
Westervelt  v.  Haff,  .  .  .  .609 
Wetmore  v.  Scovill,  ....  387 
v.  White,  .  .  .  284,  285 
Wharton  v.  May,  .         .         .         .181 

Wheeler  v.  Bingham,    .        .        .        .215 
v.  Smith,         .        .        .      65,  169 
v.  Warner,       ....     527 
v.  Wheeler,     .         .         .         .460 
Whelan  v.  Whelan,       .        .     177,  178,  204 
Whelpdale  v.  Cookson,  .        .        .188 

Whipple  v.  McClure,  .  .  .  .204 
Whispel  v.  Whispel,  .  .  .  658,  661 
Whistler  v.  Webster.  .  .  .  545,  546 
Whitbread,  Ex  parte,  .  .  .  .440 
Whitbread  v.  Jordan,  ....  441 
Whitchurch  v.  Hide,  .  .  .  .393 
Whitcomb  v.  Whiting,  .        .        .        .     191 

White  v.  Cox, 200 

v.  Damon,  .        .         .     263,  303 

v.  Lincoln,  .         .         .         .104 

v.  Moore,  ....  251,  434 
v.  Osborne,  .  .  .  .724 
v.  Pomrov,  ....     623 

v.  Trumbull,  .  .  .  .101 
v.  White,    .  126,  640 

v.  Winchester,    ....     505 

Whitehill  v.  Dorsay 211 

Whiteright  v.  Stimpson,  .  .  .  716 
Whitfield  v.  Bewit,  .  ;  .  .372 
v.  Faucet,  .  .  .  52,  4«1 
Whiton  v.  Russel,  ....  58 
Whittaker,  Matter  of,  .  .  .  269,  632 
Whittick  v.  Kane,  .  .  429,  431,  448 
Wickes  v.  Clarke,  .  .  .  233,  639 
Wiggins  v.  Bush,  .  .  .  182,  210 
Wigglesworth  v.  Steers,  .  .  .  201 
Wightman  v.  Wightman,      .        .        .     056 

Wilber  v.  Collier 240 

Wilcox,  Ex  parte,  ....  730 
Wilcox  V.Rhodes,  ....  504 
Wilde  v.  Jenkins,  ....     744 

Wilder  v.  Keeler,  102,  103,  193,  562,  719,  727 

Wilde's  case, 494 

Wilkes  v.  Ferris,  ...  554,  725 

v.  Harper,  .      46,  111 


Table  of  (Jaskk 


Wilkes  v.  Stewart, 

613 

Wollam  v.  Huanie, 

.      76 

,  28o 

Wilkie  v.  Roosevelt, 

m 

222 

Walter  v.  Copeland, 

704 

Wilkins  v.  Batterman, 

, 

460 

Wood  v.  BowclirT, 

.    275 

264 

v.  Pearce, 

717 

v.  Burnham, 

475 

Wilkinson  v.  Henderson,   . 

19 

2,  19/ 

,  720 

v.  City  of  Brooklyn,  . 

#                 p 

407 

v.  Mayfield, 

197 

v.  Downes, 

.    172 

.  183 

v.  Parish,    . 

702 

v.  Hubbell, 

54.  5' 

Willan  v.  Willan, 

266 

v.  Lowry,  . 

245 

Willard  v.  Tillman, 

57 

v.  Vandeuburgh, 

557 

Williams  v.  Baldwin, 

357 

v.  Wood, 

v.  Brown, 

238 

329,  550,  625,  657 

658,  665 

666 

v.  Chitty, 

. 

565 

v.  Young, . 

463 

v.  Crary, 

542 

Woodard  v.  Aspinwall,  . 

#        a 

267 

v.  Everett, 

, 

464 

v.  Giles, 

, 

56 

v.  Harden, 

, 

348 

v.  Harris, 

267 

291 

v.  Hay, 

37 

Woodcock  v.  Bennett,  . 

300 

v.  Houghtailing, 

100 

Wooden  v.  Waffle, 

37 

v.  Lee,  . 

.'    16: 

,  352 

,  357 

Woodenuan  v.  Baldoek, 

#                 M 

244 

v.  McNamara, 

372 

Woddross  v.  Price's  Ex'rs,    . 

104 

v.  Springfield, 

339 

Woortley  v.  Birkbead, . 

#                 a 

46 

v.  Thorne, 

431 

Woodhouse  v.  Shipley, 

214 

v.  Williams,    . 

670 

,  571 

672 

Woolstencraft.  Matter  of, 

019 

v.  Wood, 

149 

Woolridge  v.  Wilkin,    . 

712 

Williamson  v.  Allison,  . 

149 

Woodrofle  v.  Farnham, 

( 

2l'5 

v.  Williamson 

556 

657 

Woodworth  v.  Van  Buskirk, 

.     357, 

35S 

Willing  v.  Baine, 

517 

Wormley  v.  Wormley,  . 

.    699, 

606 

Willis  v.  Hiscox, 

471 

Wordsworth  v.  Lyon,  . 

.     343. 

344 

v.  Jernegan, 

142 

Worral  v.  Judson, 

762 

Willonghby,  Matter  of, 

686 

Worthington  v.  Evans, . 

5i;6 

Wilson  v.  Allen, 

332 

,  333, 

337 

Wright  v.  Samuda, 

m                # 

509 

v.  Brownsmith, 

506, 

507 

v.  Simpson, 

113 

v.  Chier,  . 

445 

v.  Wright, 

.'    461, 

5c  5 

v.  Little,  . 

458. 

459 

Wyatt  Wild's  case, 

#                 , 

132 

v.  Mount, 

545 

v.  The  Herkimer  Co 

.  Mu't 

Ins. 

Y 

Co.,       . 

151, 

168 

v.  Townshend, . 

515, 

546 

Yarborougli  v.  Newell, 

429 

v.  Troup, . 

448 

Yates  v.  Compton, 

47 

v.  Wilson, 

333 

418, 

665 

v.  Tisdale,  . 

315,  321, 

322 

Wilton  v.  Saxon, 

373 

v.  Lansing, 

346 

Winchester  v.  Jackson, 

163 

v.  Yates,     . 

.'    577, 

595 

Winchip  v.  Pitts, . 

139, 

375 

Yates,  Ex  parte,  . 

.     577.. 

595 

Wind  v.  Jekyl,     . 

484 

Yeates  v.  Groves,          .         . 

463 

Winn  v.  Littlejohn, 

. 

444 

v.  Phettiplace,  . 

519 

Wirme  v.  Reynolds, 

290 

Yeoman  v.  Chatterton, 

'.    182, 

210 

Winslow  v.  Chiffelle,'    . 

712 

Young  v.  Cooper, 

702 

Winter  v.  Lord  Anson, 

441 

v.  Craig,   . 

72 

Wintringham  v.  Lafoy, 

215, 

466 

V.  Keighly, 

722 

Wiser  v.  Bachley, 

75 

v.  Peasley, 

176 

Witheiell,  Ex  parte, 

441 

v.  Walter, 

, 

78 

Wolcott  v.  Hall,   . 

. 

557 

Yovatt  v.  Wingard, 

.         . 

407 

ERRATUM. 

On  page  316,  3d  paragraph,  2d  line,  for  "  complainants"  read  claimants. 


EQUITY  JURISPRUDENCE. 


INTRODUCTION. 


SECTION  I. 

IQUITY,  A  BRANCH  OF  JURISPRUDENCE,  DISTINCT  FROM  LAW,  THOUGH  NOT 
ADMINISTERED  BY  A  TRIBUNAL  EXCLUSIVELY  DEVOTED  TO  IT  ;  WITH  A 
SKETCH    OF    THE    RECENT    CHANGES    IN    NEW-YORK. 

THE  recent  changes  introduced  by  the  constitution  of  1846,  and  by 
subsequent  legislation,  have  made  it  expedient  to  inquire  how  far 
equity,  as  distinct  from  law,  remains  a  part  of  the  jurisprudence  of  this 
state.  At  an  early  period  in  our  colonial  history,  equity  was  administered 
by  a  tribunal  separate  from  courts  of  law.  The  constitution  of  1777 
recognized  the  office  of  chancellor  and  judges  of  the  supreme  court,  and 
prescribed  the  tenure  of  their  offices.  The  court  of  chancery  and 
supreme  court  were  organized  as  separate  tribunals,  the  one  as  a  com 
of  equity  and  the  other  as  a  court  of  law.  The  two  courts  were  con- 
tinued, and  their  jurisdiction  was  preserved  separate,  by  the  constitution 
of  1821,  and  so  remained  until  both  were  abolished  by  the  constitution 
of  1846. l 

The  present  constitution  creates  a  supreme  court  having  general  juris 
diction  in  law  and  equity.2  It  clothes  the  legislature  with  the  same 
power  to  alter  and  regulate  the  jurisdiction  and  proceedings  in  law  and 
equity  as  they  theretofore  possessed.8     It  provides  that  testimony  be 

•  <x>nst.  1777,    art.   25.     "Waterman's  pp.  318,  436.  Const,  of  1846,  art.  14,  §  8 

Am.  Oh.  Dig.,  Introduc.  p.   46.     Const.  Gov.  Dongan's  Report  in  1687,  1  Doo 

1821,  art.  5,  §§  3,  4.    2  R.  S.  168.    Pre-  History,  147. 

face  to  vol.  1,  John.  Ch.  R.    2  Greenleaf,  2  Const,  art.  6,  §  3. 

L.  N.  Y.  108  et  seq.     1  R.  L.  of  1813,  s  Id.  §  5. 

Eq.  Jur.  5 


34  Introduction. 

taken  in  equity  cases  in  like  manner  as  in  cases  at  law.1  It  empowers 
the  legislature  to  confer  equity  jurisdiction  in  special  cases  upon  the 
county  judge.2  It  declares  that  such  parts  of  the  common  law,  and  of 
the  acts  of  the  legislature  of  the  colony  of  New- York,  as  together  did 
form  the  law  of  the  said  colony  on  the  nineteenth  of  April,  one  thousand 
seven  hundred  and  seventy-five,  and  the  resolutions  of  the  congress  of 
the  said  colony,  and  of  the  convention  of  the  state  of  New- York,  in  force 
on  the  twentieth  day  of  April,  one  thousand  seven  hundred  and  seventy- 
seven,  which  had  not  then  expired,  or  been  repealed  or  altered,  and  such 
acts  of  the  legislature  of  this  state  as  were  then  in  force,  should  be  and 
continue  the  law  of  the  state,  subject  to  such  alterations  as  the  legis- 
lature should  make  concerning  the  same.3 

The  same  section  abrogates  all  such  parts  of  the  common  law,  and 
such  of  the  said  acts,  or  parts  thereof,  as  are  repugnant  to  the  constitu 
tion ;  and  by  a  subsequent  article,  it  requires  the  legislature,  at  its  first 
session  after  the  adoption  of  the  constitution,  to  provide  for  the  appointment 
of  three  commissioners,  whose  duty  it  shall  be  to  revise,  reform.  smrpiifT 
and  abridge  the  rules  and  practice  of  the  courts  of  record  ot  this  stme. 
and  to  report  thereon  to  the  legislature,  subject  to  tneir  adoption 
and  modification,  from  time  to  time.4  Before  the  commissioners  made 
their  report,  the  legislature,  by  their  act  of  May  12,  1847,5  organized  the 
higher  courts  created  by  the  constitution.  By  the  16th  section  of  thai 
act.  it  is  enacted  that  the  supreme  court  shall  possess  the  same  powers, 
and  exercise  the  same  jurisdiction,  as  was  then  possessed  and  exercised 
by  the  (then)  supreme  court  and  court  of  chancery ;  and  that  the 
justices  of  the  said  court  shall  possess  the  powers,  exercise  the 
jurisdiction  (then)  possessed  and  exercised  by  the  justices  of  the  late 
rapreme  court,  chancellor,  vice  chancellors  and  circuit  judges,  so  far  as 
the  powers  and  jurisdiction  of  said  courts  and  officers  shall  be  consist- 
ent with  the  constitution  and  provisions  of  the  act.  The  section  also 
makes  all  laws  relating  to  the  late  supreme  court  and  court  of  chancery, 
or  any  court  held  by  a  vice  chancellor,  and  the  jurisdiction,  powers  and 
duties  of  said  courts,  the  proceedings  therein,  and  the  officers  thereof, 
their  powers  and  duties,  applicable  to  the  supreme  court  organized  by 
the  act,  the  powers  and  duties  thereof,  the  proceedings  therein,  and  the 
officers  thereof,  their  powers  and  duties,  so  far  as  the  same  can  be  ap- 
plied and  are  consistent  with  the  constitution  and  the  said  act.     The 


1  Const,  art.  6,  §  10.  *  Const,  art.  6,  §  24. 

*  Id.  §14.  '  L.  of  1847  p.  319 

*  Const,  art.  1,  §  17. 


Introduction.  35 

statute  also  organizes  the  general  and  special  terms  of  the  supreme 
court,  the  former  mainly  as  an  appellate  tribunal,  and  the  latter,  amongst 
other  things,  to  hear  and  determine  suits  and  proceedings  in  equity, 
and  it  requires  that  all  suits  and  proceedings  in  equity,  in  said  supreme 
court,  shall  be  first  heard  and  determined  at  a  special  term  of  said  court, 
unless  the  justice  holding  such  term  shall  direct  the  same  to  be  heard 
at  a  general  term.  Provision  is  also  made  for  rehearing  at  a  general 
term,  on  the  application  of  either  party,  of  any  suit  or  proceeding  in  equity 
heard  and  determined  at  a  special  term.1 

The  act  of  May  12,  1847,  above  cited,  and  the  amendatory  act  of  De- 
cember 14,  184T,2  were  designed  to  vest  in  the  various  courts,  created  by 
the  constitution,  the  powers  and  jurisdiction  possessed  and  exercised  by 
the  courts  which  existed  prior  to  its  adoption.  The  same  judges  were 
empowered  to  administer  law  and  equity.  Neither  the  constitution  or 
the  statute  altered  the  form  of  remedy.  The  subjects  of  jurisdiction, 
too,  remained  unchanged. 

In  pursuance  of  the  requirements  of  the  act  of  April  12,  184T,  §  24,° 
the  justices  of  the  supreme  court  assembled  at  the  capitol  in  Albany,  in 
July  of  that  year,  and  established  the  rules  for  governing  the  practice  of 
the  courts,  by  revising  and  altering  those  which  were  in  force  at  the 
adoption  of  the  constitution,  and  making  such  new  ones  as  were  required 
by  the  new  organization.  These  rules  assume  that  law  and  equity, 
t'lough  administered  by  the  same  tribunal,  are  different  branches  of  ju- 
r  .sprudence,  and  are  most  conveniently  administered  by  different  forms  of 
procedure.  The  practice  under  those  rules,  continued  without  objection, 
until  the  following  year,  when  the  commissioners  of  pleading  and  prac- 
ce  reported,  and  the  legislature  adopted,  the  first  code  of  procedure.4 

The  code  was  amended  in  1849,  1851,  and  again  in  1852,  and  as  so 
amended,  controls  the  practice  of  the  courts,  as  far  as  it  extends.  There 
are  numerous  cases  not  provided  for  by  the  code,  which  are  still  governed 
by  the  former  practice  of  the  courts. 

The  140th  section  of  the  code  of  1852,  is  in  these  words  :  "  All  the 
forms  of  pleading  heretofore  existing,  are  abolished  ;  and  hereafter,  the 
forms  of  pleading  in  civil  actions,  in  courts  of  record,  and  the  rules 
by  which  the  sufficiency  of  the  pleadings  are  to  be  determined,  are 
those  prescribed  by  this  act."  The  first  section  of  the  code  divides  rem- 
edies in  the  courts  of  justice  into  actions  and  special  proceedings :  It 
defines   an  action  to  be  an  ordinary  proceeding  in  a  court  of  justice,  by 

1  L.  of  1847,  p.  323-325.  s  L.  1847.  p.  327. 

*  L.  of  1S47,  p.  638.  3  Code  of  1848. 


36  Introduction, 

which  a  party  prosecutes  another  party  for  the  enforcement  or  protec- 
tion of  a  right,  the  redress  or  prevention  of  a  -wrong,  or  the  punishment 
of  a  public  offense.  Every  other  remedy  is  a  special  proceeding.  Ac 
tions  are  of  two  kinds,  civil  and  criminal — a  criminal  action  is  prosecuted 
by  the  people  of  the  state,  as  a  party,  against  a  person  charged  with 
a  public  offense,  for  the  punishment  thereof.  Every  other  is  a  civil 
action. 

The  abrogation  of  the  ancient  forms  of  pleading,  and  the  establishing 
of  a  uniform  system  of  remedies  in  the  courts,  do  not  abrogate  the  dis 
tinction  between  law  and  equity,  nor  require  that  every  cause  of  action 
should  be  set  forth  in  the  same  terms.  The  code  itself  says,  that  tin- 
complaint  shall  contain  the  title  of  the  cause,  specifying  the  name  of 
the  court  in  which  the  action  is  brought,  the  name  of  the  county  in  which 
the  plaintiff  desires  the  trial  to  be  had,  and  the  names  of  the  parties  to  the 
action,  plaintiff  and  defendant,  a  plain  and  concise  statement  of  the  facts) 
constituting  the  cause  of  action,  without  unnecessary  repetition,  and  11 
demand  of  the  relief  to  which  the  plaintiff  supposes  himself  entitled.  II 
the  recovery  of  money  be  demanded,  the  amount  thereof  shall  be  stated  s 
The  statement  of  the  facts  will  vary  with  the  nature  of  the  wrong  to  be 
redressed,  or  contract  to  be  enforced ;  and  the  definition  of  the  complaint 
is  as  appropriate  to  a  bill  in  chancery  for  relief  against  a  fraudulent  as- 
signment, as  to  a  declaration  at  law  for  a  battery,  or  to  recover  the 
amount  of  a  promissory  note. 

The  confusion  arising  from  a  misjoinder  of  parties  and  causes  of  action, 
is  guarded  against  by  the  167th  section  of  the  code.  The  section  allows 
the  plaintiff  to  unite  in  the  same  complaint  several  causes  of  action, 
whether  they  be  such  as  have  been  heretofore  denominated  legal  or 
equitable,  or  both,  when  they  all  arise  out  of,  (1,)  the  same  transaction  or 
transactions  connected  with  the  same  subject  of  action  ;  (2,)  contract,  ex- 
press or  implied ;  or,  (3,)  injuries  with  or  without  force,  to  person  and  prop- 
erty, or  either  ;  or,  (4.)  injuries  to  character  ;  or,  (5,)  claims  to  recover  real 
property,  with  or  without  damages,  for  the  withholding  thereof,  and  the 

"jnts  and  profits  of  the  same  ;  or,  (6,)  claims  to  recover  personal  property. 

,ith  or  without  damages,  for  the  withholding  thereof;  or,  (7,)  claims  against 
a  trustee,  by  virtue  of  a  contract,  or  by  operation  of  law.     But  the  causes 

f  action,  so  united,  must  all  belong  to  one  of  these  classes,  and  must 

fleet  all  the  parties  to  the  action,  and  not  require  different  places  of 
trial,  and  must  be  separately  stated. 

The  continuance  of  equity  as  a  distinct  branch  of  jurisprudence,  and 

1  Code  of  1852,  §  142. 


Introduction.  87 

of  the  application  of  equitable  as  well  as  legal  remedies,  are  plainly 
inferrible  from  the  language  of  the  code,  and  have  been  repeatedly  recog- 
nised by  the  courts.1  The  former  names  of  actions  arc  dispensed  with. 
The  subject  matter  which  constitutes  the  basis  of  the  claim  to  relief 
must  be  stated  now,  as  well  as  formerly,  but  the  cumbrous  phraseology 
which  sometimes  obscured  the  facts  in  a  former  bill  in  chancery,  is  dis- 
pensed with,  and  the  material  facts  alone,  in  distinction  from  matters  of 
evidence,  are  required  to  be  set  forth. 

The  complaint  under  the  code,  contains  no  prayer  for  process.  The 
names  of  the  parties,  plaintiff  and  defendant,  must  apoear  in  the  com- 
plaint, and  the  prayer  for  relief. 


SECTION"  II. 

GENERAL  NATURE  OF  XQUITY. 

Having  thus  shewn  that  equity,  as  distinct  from  law,  still  remains  a 
branch  of  our  jurisprudence,  it  will  be  convenient  to  consider  what  is 
understood  by  that  term.  In  its  most  general  and  comprehensive  sense, 
equity  is  often  used  to  denote  natural  justice.  In  this  sense  it  relates 
to  the  disposition  which  all  should  cherish  of  rendering  to  every  one  his 
due,  rather  than  to  a  system  of  remedial  justice.  It  corresponds  to  the 
definition  of  justice,  or  natural  law,  as  given  by  Justinian.  Juslitia  est 
const ans  et  perpetua  voluntas  jus  suum  cuique  tribuendi2  In  a  more 
restricted  sense,  it  is  used  as  denoting  a  rule  of  construction  or  interpre- 
tation. When  the  words  of  a  law  are  dubious,  regard  must  be  had  to  its 
reason  and  spirit.  It  often  happens  that  when  the  reason  of  the  law 
ceases,  the  law  itself  ceases  with  it.  Cessante  ratione  legis  cessat  ipsa 
le.v.s     This  is  well  illustrated  in  the  case  put  by  Cicero,  as  quoted  by 

1  Getty  v.  Hudson  R.  Railroad,  6  How.  ny  v.  Hitchins,  4  id.  98,  90.     Giles  v. 

Tr.  R.  2G9.   Bouton  v.  City  of  Brooklyn,  Lyon,  4  Corns.  599.     Grant  v.  Quick,  5 

V  id.  198;  S.  C,  15  Barb.  385.   Knowles  Sand.   S.  C.  R.  612.     Gardner   v.  Lee, 

r.  Gee,  8  id.  300.     Wooden  v.  Waffle,  6  11  Barb.  558.     Hinman  v.  Judson,  13  id. 

How.  Pr.  R.  145.    Rochester  City  Bank  629,  631.      Hunt  v.  Farmers'  Loan,   8 

v.  Sujdarn,  5  How.  216.   Linden  v.  Hep-  How.  416.    Van  Home  v.  Everson,  13 

burn,  3  Sand.  S.  C.  R.  668  ;  S.  C,  5  How.  Barb.  531. 

188.  Millikan  v.  Carey  id.  272.  Williams  ■  Inst.  lib.  1,  tit.  1. 

v.  Hays,  id.  470.     McMurray  v.  Gifford,  3  Co.  Litt.   70,   b.    Broom's  Maxima, 

id.  14.     Russell  v.  Chop.  4  M.  374.  Glen-  115. 


38  Introduction. 

Blackstone.1  "  There  was  a  law,  that  those  who  in  a  storm  forsook  the 
ship  should  forfeit  all  property  therein  ;  and  that  the  ship  and  lading 
should  belong  entirely  to  them  who  staid  in  it.  In  a  dangerous  tempest 
all  the  mariners  forsook  the  ship,  except  only  one  sick  passenger,  who, 
by  reason  of  his  disease,  was  unable  to  get  out  and  escape.  By  chance 
the  ship  came  safe  to  port.  The  sick  man  kept  possession  and  claimed 
the  benefit  of  the  law.  Now  here  all  the  learned  agree,  that  the  sick 
man  is  not  within  the  reason  of  the  law  ;  for  the  reason  of  making  it  was 
to  give  encouragement  to  such  as  should  venture  their  lives  to  save  the 
vessel.  But  this  is  a  merit  which  he  could  never  pretend  to,  who  neither 
staid  in  the  ship  upon  that  account,  nor  contributed  any  thing  to  its  pre- 
servation." 

From  this  method  of  interpreting  laws  by  the  reason  of  them,  say.c< 
Blackstone,  arises  what  we  call  equity  ;  which  is  thus  denned  by  Grotius, 
"  the  correction  of  that  wherein  the  law  by  reason  of  its  universality  i.'j 
deficient."  For  since  in  laws  all  cases  cannot  be  foreseen  or  expressed, 
it  is  necessary,  that  when  the  general  decrees  of  the  law  come  to  bo 
applied  to  particular  cases,  there  should  be  somewhere  a  power  vested 
of  defining  those  circumstances,  which,  had  they  been  foreseen,  the  legis- 
lator himself  would  have  expressed ;  and  these  are  the  cases  which,  accord- 
ing to  Grotius,  "  lex  non  exacte  definite  sed  arbitrio  boni  viri  permittit."* 

And  in  another  place  the  same  learned  commentator  says,  "  Equity,  in 
its  true  and  genuine  meaning,  is  the  soul  and  spirit  of  all  law ;  positive 
law  is  construed,  and  rational  law  is  made  by  it.  In  this,  equity  i? 
synonymous  with  justice  ;  in  that,  to  the  true  and  sound  interpretation  of 
the  rule.3  In  this  sense,  equity  must  have  a  place  in  every  system  of 
jurisprudence,  in  substance  if  not  in  name.  No  system  of  human  lawa 
is  so  perfect  but  that  cases  must  occur  in  which  general  rules  cannot  be 
applied  without  injustice,  and  perhaps  not  applied  at  all.  It  is  the 
province  of  the  judge  so  to  construe  them,  when  they  arise,  as  to  accom- 
plish  the  object  of  the  lawgiver,  if  it  can  be  done  without  violence  to  the 
etter. 

Equity  is  sometimes  used  in  still  another  sense,  as  denoting  a  system 
supplementary  to  the  law.  In  this  sense  it  was  used  by  Bacon  on  the 
occasion  of  his  accepting  the  office  of  chancellor.  Chancery,  said  he,  is 
ordained  to  supply  the  law  and  not  to  subvert  the  law.4  And  the  author 
ot  the  Treatise  of  Equity,  a  work  of  high  repute,  after  remarking  upon 
the  necessity  of  having  recourse  to  the  natural  principles,  that  what  waa 

1  Com.  61.  *  3  Bl.  Com.  429. 

2  1  Bl.  Com.  61.  4  Bacon's  speech,  4  Bac.  Works,  48$. 


Introduction.  39 

wanting  to  tin*  finite  may  be  supplied  out  of  that  which  is  infinite ;  and 
that  this  is  what  is  called  equity,  in  opposition  to  strict  law,  observes : 
"  And  thus,  in  chancery,  every  particular  case  stands  upon  its  own  par- 
ticular circumstances  ;  and  although  the  common  law  will  not  decree 
against  the  general  rule  of  law,  yet  chancery  doth,  so  as  the  example 
introduces  not  a  general  mischief.  Every  matter,  therefore,  that  hap 
pens  inconsistent  with  the  designs  of  the  legislator,  or  is  contrary  to 
natural  justice,  may  find  relief  here.  For  no  man  can  be  obliged  to 
any  thing  contrary  to  the  law  of  nature  ;  and  indeed  no  man  in  his  senses 
can  be  presumed  willing  to  oblige  another  to  it.  But  if  the  law  has 
determined  a  matter,  with  all  its  circumstances,  equity  cannot  intermed- 
dle ;  and  for  the  chancery  to  relieve  against  the  express  provisions  of  an 
act  of  parliament,  would  be  the  same  as  to  repeal  it.  Equity,  therefore, 
will  not  interpose  in  such  cases,  notwithstanding  accident  or  unavoidable 
necessity ;  so  that  infants  had  been  bound  by  the  statute  of  limitations, 
if  there  had  been  no  exception  in  the  act.  And  although  in  .natters  of 
apparent  equity,  as  fraud  or  breach  of  trust,  precedents  are  not  necessary, 
it  is  dangerous  to  extend  the  authority  of  the  court  further  than  the 
practice  of  former  times."1 

Notwithstanding  the  qualification  in  the  latter  part  of  the  above  quo- 
tation, the  assertion  that  chancery  will  decree  against  the  general  rule  of 
law.  and  relieve  against  every  mischief  which  happens  contrary  to  natural 
justice,  is  not  founded  in  principle  or  supported  by  authority.  An  emi- 
nent equity  judge,  in  one  of  his  most  elaborate  judgments,2  has  placed  this 
subject  in  a  clear  light :  "  The  law  is  clear,  and  courts  of  equity  ought  to 
follow  it  in  their  judgments  concerning  titles  to  equitable  estates;  other- 
wise great  uncertainty  and  confusion  would  ensue  ;  and  though  proceed- 
ings in  equity  are  said  to  be  secundum  discretionem  boni  viri,  yet  when 
it  is  asked,  vir  bonus  est  quis  ?  the  answer  is,  qui  consult  a  pat  rum  qui  legei. 
juraque  scrvat ;  and  it  is  said  in  Rook's  case,  5  Rep.  99  b,  that  discretion 
is  a  science  not  to  act  arbitrarily,  according  to  men's  wills  and  private 
affections  ;  so,  the  discretion  which  is  executed  here  is  to  be  governed  by 
the  rules  of  law  and  equity,  which  are  not  to  oppose,  but  each  in  its  turn 
to  be  subservient  to  the  other ;  this  discretion,  in  some  cases,  follows  the 
law  implicitly;  in  others  assists  it,  and  advances  the  remedy  .  in  others 
again,  it  relieves  against  the  abuse,  or  allays  the  rigor  of  it ;  but  in  n'. 
case  does  it  contradict  or  overturn  the  grounds  or  principles  thereof,  as 
has  been  sometimes  ignorantly  imputed  to  this  court.     That  is  a  discre- 

Fonb.  Equity,  Look  1,  ch.  1,  §  3.  2  Sir  Joseph  Jekyl,  M.  R.  in  Cowperv. 

Cowper,  2  P.  Wins.  753. 


40  Introduction. 

tionary  power,  'which  neither  this,  nor  any  other  court,  not  even  the  high- 
est, acting  in  a  judicial  capacity,  is  by  the  constitution  entrusted  with.5' 
Sir  Thomas  Clarke  adopted  this  very  language,  and  gave  it  his  approba 
tion,  in  Burgese  v.  Wheate.1  Lord  Redesdale,  in  Bond  v.  Hopkins,2 
observed :  "  There  are  certain  principles  on  which  courts  of  equity  act, 
which  are  very  well  settled.  The  cases  which  occur  are  various,  but  they 
•are  decided  on  fixed  principles.  Courts  of  equity  have,  in  this  respect, 
no  more  discretionary  power  than  courts  of  law.  They  decide  new  cases 
as  they  arise  by  the  principles  on  which  former  cases  have  been  decided, 
and  may  thus  illustrate  or  enlarge  the  operation  of  those  principles  ;  but 
the  principles  are  as  fixed  and  certain  as  the  principles  on  which  the 
courts  of  common  law  proceed." 

These  principles  received  the  full  concurrence  of  the  late  Chancellor 
Kent,  in  the  early  part  of  his  splendid  career  as  chancellor.3  When 
pressed  to  depart  from  the  settled  rule  of  the  English  chancery,  he  said, 
"  I  take  this  occasion  to  observe,  that  I  consider  myself  bound  by  those 
principles,  which  were  known  and  established  as  law  in  the  courts  of 
equity  in  England  at  the  time  of  the  institution  of  this  court;  and  I 
shall  certainly  not  presume  to  strike  into  any  new  path,  with  visionary 
schemes  of  innovation  and  improvement ;  via  antiqua  via  est  tuta." 
After  remarking  on  the  necessity  of  drawing  his  knowledge  from  books 
and"  not  from  his  own  head,  he  says,  "  This  court  ought  to  be  as  much 
bound  as  a  court  of  law,  by  a  course  of  decisions  applicable  to  the  case, 
and  establishing  a  rule.  As  early  as  the  time  of  Lord  Keeper  Bridgman, 
it  was  held  that  precedents  were  of  authority  ;  and  that  it  would  be  very 
strange  and  very  ill  to  disturb  a  rule  in  chancery  which  had  been  settled. 
(1  Mod.  307.)  The  system  of  equity  principles  which  has  grown  up  and 
become  matured  in  England,  and  chiefly  since  Lord  Nottingham  was  ap- 
pointed to  the  custody  of  the  great  seal,  is  a  scientific  system,  being  the 
result  of  the  reason  and  labors  of  learned  men  for  a  succession  of  ages. 
It  contains  the  most  enlarged  and  liberal  views  of  justice,  with  a  mixture 
of  positive  and  technical  rules,  founded  in  public  policy,  and  indispens- 
ible  in  every  municipal  code.  It  is  the  duty  of  this  court  to  apply  the 
principles  of  this  system  to  individual  cases,  as  they  may  arise  ;  and,  by 
this  means,  endeavor  to  transplant  and  incorporate  all  that  is  applicable 
in  that  system  into  the  body  of  our  own  judicial  annals,  by  a  series  of 
lecisions  at  home."  Lord  Chancellor  Talbot,  when  pressed  with  the  hard- 
ship of  a  particular  case,  said,  "  If  the  law,  as  it  now  stands,  be  thought 

1 1  W.  Black.  R.  123.  3  Manning  v.  Manning,  1  J.  Ch.  R.  530. 

2  1  Schoale  &  Lefroy,  428,  9. 


INTRODUCTION.  41 

inconvenient,  it  will  be  a  good  reason  for  the  legislature  to  alter  it,  but 
till  that  is  clone,  Avhat  is  law  at  present  must  take  place."1 

A  court  of  equity  has  no  power  to  relieve  against  a  general  rule  of 
law  ;  nor  to  abate  the  rigor  of  the  common  law  :  nor  to  afford  relief  in 
cases  against  natural  justice  in  every  case,  for  many  such  exist,  without 
any  redress,  legal  or  equitable.2  Nor  is  it  governed  by  the  mere  opinion 
of  the  judge,  founded  on  the  circumstances  of  each  particular  case.  On 
the  contrary,  says  Blackstone,3  the  system  of  our  courts  of  equity  is  a 
labored,  connected  system,  governed  by  established  rules,  and  bound  down 
by  precedents,  from  which  they  do  not  depart,  although  the  reason  of 
some  of  them  may  perhaps  be  liable  to  objection.  In  short,  he  says,  if  a 
court  of  equity  in  England  did  really  act,  as  many  ingenious  writers  hav* 
supposed  it,  from  theory  to  do,  it  would  rise  above  all  law,  either  common 
or  statute,  and  be  a  most  arbitrary  legislator  in  every  particular  case. 

After  a  careful  review  of  the  subject  Mr.  Justice  Story  says  :*  "  Equity 
jurisprudence  may  properly  be  said  to  be  that  portion  of  remedial  justice, 
which  is  exclusively  administered  by  a  court  of  equity,  as  contradistin- 
guished from  that  portion  of  remedial  justice,  which  is  exclusively  admin- 
istered by  a  court  of  common  law."  And  in  another  place,5  he  says : 
"  Perhaps  the  most  general,  if  not  the  most  precise,  description  of  a  court 
of  equity  in  the  English  and  American  sense  is,  that  it  has  jurisdiction  in 
cases  of  rights  recognized  and  protected,  by  the  municipal  jurisprudence, 
where  a  plain,  adequate  and  complete  remedy  cannot  be  had  in  the  courts 
of  common  law."  However  accurate  this  description  may  be  in  a  country 
where  law  and  equity  are  administered  by  different  forms  and  in  differ- 
ent tribunals,  it  is  scarcely  applicable  to  the  courts  of  this  state  since  the 
code  has  abolished  all  previous  forms  of  pleading,  and  the  distinction 
between  legal  and  equitable  remedies,  and  established  a  uniform  course 
of  proceeding  in  all  cases,  and  the  constitution  has  vested  in  the  same 
tribunal  both  legal  and  equitable  jurisdiction. 

There  are  three  modes  of  considering  the  great  mass  composing  the 
jurisdiction  of  equity.  The  first  is  by  the  subjects  cognizable  in  equity, 
the  second  is  by  a  comparison  of  the  poivers  of  equity,  with  those  of  the 
common  law,  and  the  third  is  by  the  modes  of  trial,  the  modes  of  proof 
and  the  modes  of  relief.  Mr.  Maddock  has  adopted  the  first  mode,  and 
^as  distributed  equity  jurisdiction  under  six  heads  :  1,  accident  and  mis- 
take ;  2,  account ;  3.  fraud  ;  4,  infants  ;  5,  specific  performance  of  agree- 
ments ;  and  6,  trusts.6     Considered  with  reference  to  the  second  mode,  the 

1  Head  v.  Stamford,  3  P.  Wms.  412.  4  1  Story's  Equity,  §  25. 

2  3  Black.  Com.  430  et  seq.  i  Id.  §  33. 

1  W.  432.  •  1  Mad.  Ch.  Pr.  21. 

Eq.  Jur.  6 


42  Introduction. 

jurisdiction  of  equity  is  assistant,  concurrent  and  exclusive.1  The 
object  of  the  third  moae  is  merely  to  point  out  the  line  of  division  be- 
tween the  jurisdiction  at  law  and  in  equity. 

With  us,  since  the  adoption  of  the  constitution  of  1846,  the  mode  of 
proof  in  equity  is  the  same  as  at  law,2  and  the  code  has  prescribed  th<? 
same  mode  of  trial  in  all  cases.  These  circumstances,  therefore,  cease  to  bo 
a  criterion  to  determine  whether  the  subject  of  the  action  be  of  legal  or 
equitable  cognizance.  Equity,  too,  has  ceased  with  us  to  be  assistant  to  a 
court  of  law.  The  code  forbids  any  action  to  obtain  discovery  under  oath. 
>/n  aid  of  the  prosecution  or  defense  of  another  action?  but  prescribes 
as  a  substitute,  a  mode  of  examining  a  party  as  a  witness,  at  the  instance 
of  the  adverse  party.  Hence  a  mere  bill  of  discovery,  in  aid  of  another 
action,  is  rendered  unnecessary.  There  are  many  cases  in  which  courts 
of  law  and  equity  entertain  concurrent  jurisdiction.  To  this  class  belong 
most  of  the  subjects  of  equitable  cognizance.  This  concurrence  of  juris- 
diction has  its  origin  in  one  of  two  sources  ;  either  the  courts  of  law, 
though  they  have  general  jurisdiction  in  the  matter,  cannot  give  adequate, 
specific  and  perfect  relief;  or,  under  the  actual  circumstances  of  the  case, 
they  cannot  give  any  relief  at  all.4  The  former  occurs  in  all  cases  where 
a  simple  judgment  for  the  plaintiff  or  for  the  defendant  does  not  meet 
the  full  merits  and  exigencies  of  the  case ;  but  a  variety  of  adjustments, 
limitations  and  cross-claims  are  to  be  introduced  and  finally  acted  on ; 
and  a  decree  meeting  all  the  circumstances  of  the  particular  case  between 
the  very  parties  is  indispensable  to  distributive  justice.  The  latter 
occurs  where  the  object  sought  is  in  capable  of  being  accomplished  by  the 
courts  of  law;  as  for  instance,  a  perpetual  injunction  to  restrain  nuisances 
and  the  like.5 

Perhaps  no  better  test,  under  the  code,  can  be  found  to  determine 
whether  the  action  be  brought  to  enforce  a  legal  or  an  equitable  right, 
than  the  prayer  for  relief.  If  the  cause  of  action  stated  in  the  com- 
plaint requires  other  relief  than  the  payment  of  money,  or  the  recovery 
of  real  or  personal  property,  under  subdivisions  5  and  6  of  section  167, 
and  such  relief  be  prayed,  the  action  must  be  treated  as  of  an  equitable 
nature.  Chapter  6,  §  274  of  the  code,  allows  judgment  to  be  given  for  or 
against  one  or  more  of  several  plaintiffs,  and  for  or  against  one  or  more 
of  several  defendants,  and  permits  the  court  to  determine  the  ultimato 
rights  of  the  parties  on  each  side  as  between  themselves.     This  provi- 


1 1  Eonb.  Eq.  B.  1,  ch.  1,  §  2,  note.        3  Code,  §  389. 
Cooper's  Equity,  26.  *  1  Story's  Equity,  §  76. 

*  Const,  ait,  6.  §10.  *  Id. 


Introduction.  43 

•ion,  borrowed  from  the  former  chancery  practice,  is  inapplicable  to  an 
ordinary  action  at  law,  and  is  absolutely  indispensable  in  actions  of  an 
equitable  character,  where  the  parties  are  numerous,  the  transactions 
complicated,  and  conflicting  equities  are  to  be  adjusted.  Relief  may  be 
obtained  under  the  code  in  all  cases  where  it  could  be  granted  before, 
whether  at  law  or  in  equity.  The  subject  of  rights  and  wrongs  remains 
unchanged.  The  remedy  to  enforce  them,  or  to  prevent  their  violation, 
or  to  obtain  satisfaction  for  their  violation,  still  exists,  but  under  a  differ- 
ent name.  A  civil  action,  nomen  generaUssirmim,  comprises  within 
itself  all  the  former  actions,  both  at  law  and  in  equity.  Whatever  right 
is  sought  to  be  enforced  or  wrong  redressed,  the  complaint  must  contain 
the  facts  Ayhich  constitute  the  cause  of  action,  and  the  prayer  for  the 
proper  relief.  Like  a  bill  in  chancery  under  the  former  practice,  it 
should  state  a  consistent  case  on  behalf  of  all  the  plaintiffs,  if  there 
be  more  than  one  ;  and  state  it  in  direct  terms,  with  reasonable  cer- 
tainty, and  without  scandal  or  impertinence.1  The  charges,  pretenses 
and  interrogatories  are  no  longer  necessary. 

The  doctrines  of  a  court  of  equity  are  as  important  to  be  understood, 
in  practicing  under  the  code,  as  before  it  was  adopted.  The  code  is 
a  mere  system  of  practice.  It  has  not  changed  the  nature  of  human 
transactions,  nor  has  it  repressed  the  avidity  for  gain,  nor  the  competi- 
tions of  ambition,  nor  the  unscrupulous  graspings  of  avarice,  nor  the 
encroachments  of  selfishness  and  fraud.  The  sources  from  which  litiga- 
tion heretofore  sprung  are  by  no  means  dried  up,  and  the  same  causes 
will  continue  to  engender  the  like  controversies,  and  afford,  as  in  former 
times,  employment  for  courts  of  justice. 

There  is  the  same  necessity  now,  as  heretofore,  for  an  accurate  know- 
ledge of  the  various  branches  of  jurisprudence.  A  knowledge  of  equity 
jurisprudence,  in  particular,  is  an  essential  part  of  the  education  of 
every  lawyer,  as  well  under  the  present,  as  under  the  former  system. 
A  treatise  on  that  subject  is  of  equal,  if  not  of  more  importance  than 
formerly,  since  it  cannot  be  doubted  that  the  blending  of  all  actions  into 
one  single  form  may,  in  some  instances,  cast  a  doubt  over  the  rights 
which  they  are  designed  to  protect.  The  circumstances  under  which 
equity  will  afford  relief,  in  cases  of  accident  and  mistake,  the  specific 
performance  of  agreements,  the  accounts  of  copartners,  the  execution  of 
trusts,  the  prevention  of  fraud,  and  the  various  other  branches  of  equity 
cognizance,  are  as  important  to  be  known  as  they  were  under  the  former 
practice.     No  pleader  can  set  forth,  with  legal  precision,  the  facts  which 

1  Adams'  Equity,  Iutrod.  78. 


44  Introduction. 

constitute  his  cause  of  action,  without  an  accurate  knowledge  of  rights 
and  remedies. 

In  treating  the  subject  of  equity  jurisprudence  under  the  present 
organization  of  the  courts  of  this  state,  the  distinction  between  what  was 
formerly  called  the  concurrent,  the  exclusive  and  the  auxiliary  juris- 
diction of  courts  of  equity,  seems  inappropriate,  except  with  reference  to 
the  past.  No  arrangement  of  the  various  subjects  can  be  so  made  but 
that  they  will  occasionally  run  into  each  other.  It  has  never  been  possi^ 
ible  to  fix  a  line  beyond  which  the  courts  would  not  afford  relief.  If  such 
iine  could  be  ever  fixed,  the  region  beyond  it  would  at  once  become  the 
favorite  theater  of  fraud,  injustice  and  oppression.  It  is  nevertheless 
desirable,  for  the  sake  of  perspicuity,  that  the  subjects  of  discussion 
should  be  arranged  under  titles  that  will  indicate  their  general  nature 
We  shall  accordingly,  after  a  brief  survey  of  the  leading  maxims  of 
equity,  indicate  the  general  distribution  of  the  subject. 


( 


SECTION  III. 

GENERAL  VIEW  OF  THE    MAXIMS  OF  EQUITY  AND  DISTRIBUTION  OF  THE  SUBJECT. 

In  considering  the  subject  of  equity  jurisprudence,  it  may  be  well,  in 
the  first  place,  to  bring  to  the  notice  of  the  reader  some  of  the  maxims 
and  principles,  by  which  courts  of  equity  are  governed  in  administering 
relief.  "  Maxims,"  it  has  been  truly  said,  "  are  the  condensed  good  sense 
of  nations."  Those  which  pertain  to  this  department  of  the  law,  have 
the  sanction  of  ages  in  their  favor.  They  grew  up,  for  the  most  part, 
under  a  system  in  which  equity  was  administered  by  a  separate  tribunal. 
distinct  from  courts  of  law.  Some  of  them  are  not  perhaps  strictly  appli- 
cable, or  are  to  be  received  with  modifications,  under  a  system  in  which 
law  and  equity  are  sought  to  be  blended  into  one,  and  are  administered  by 
the  same  judges  and  forms  of  procedure.  Among  these,  it  is  a  common 
maxim,  that  equity  follows  the  law,  aquitas  sequitur  legem.1  In  coun- 
tries where  equity  is  administered  by  different  tribunals,  this  maxim  is 
susceptible  of  various  interpretations.  It  may  mean  that  equity  adopts 
and  follows  the  rules  of  law  in  all  cases  ;  or,  that  in  dealing  with  cases  of 

'  Bun-ell's  Law  Diet.  427. 


Introduction.  45 

an  equitable  nature,  it  follows  the  analogies  of  law.1  To  a  certain  extent 
it  is  true  in  both  senses,  but  not  universally  so  in  either.  A  court  of 
equity  can  in  no  case  relieve  against  a  positive  act  of  the  legislature,  or 
an  established  rule  of  the  common  law.  It  cannot  enforce  specifically 
an  agreement  void  by  the  statute  of  frauds,  if  the  defendant  insists  on 
the  statute,  unless  an  equity  is  raised  in  favor  of  the  party  calling  for  its 
performance,  which  cannot  otherwise  be  satisfied.*  The  cases  on  this 
point  go  upon  the  ground,  that  the  refusal  to  complete  the  purchase  would 
operate  as  a  fraud  upon  the  other  party.  In  many  cases,  equity  acts  in 
analogy  to  the  rules  of  law,  in  relation  to  equitable  titles  and  estates. 
Thus,  before  the  statute  of  limitations  applied  to  equitable  demands, 
equity  required  relief  to  be  sought  in  relation  to  titles  to  land,  within 
the  period  in  which  an  ejectment  would  lie ;  and  in  cases  of  personal 
claims,  within  the  period  prescribed  for  personal  suits  of  a  like  nature.3 
But  the  principles  of  these  cases  were  adopted  by  the  revised  statutes, 
and  have  since  been  incorporated  in  the  code  ;4  and  an  express  limitation 
has  been  adopted  for  cases  of  which  equity  has  sole  and  exclusive  cog- 
nizance.5 

The  maxim  that  equity  follows  the  law,  though  true  in  certain  senses, 
admits  of  various  exceptions.  It  cannot  be  said  that  where  the  law 
affords  no  remedy,  there  is  none  in  equity ;  nor  can  it  be  affirmed  that  in 
administering  equity,  no  regard  is  had  to  the  rules  of  law.6 

It  is  another  maxim,  that  where  the  equities  are  equal,  the  kw  must 
prevail.7  In  such  case,  the  defendant  has  as  good  a  right  to  the  pro- 
tection of  the  court  as  the  plaintiff  has  to  relief,  and  thus  another  rule 
intervenes  :  In  equali  jure  melior  est  conditio  possidentis.5  When  par- 
ties have  been  equally  innocent  and  equally  diligent,  a  court  of  equity 
leaves  them  as  they  were.  If  the  defendant  has  an  equal  claim  to  the 
protection  of  a  court  of  equity,  to  defend  his  possession,  as  the  plaintiff 
has  to  the  assistance  of  the  court  to  assert  his  right,  the  court  will  not 
interfere  on  either  side.9  If  there  be  several  equal  equitable  interests 
affecting  the  same  estate,  they  will  attach  upon  it,  according  to  the 
periods  at  which  they  commenced,  according  to  another  maxim  of  equity 

1  Wooddeson's  Lect.  56,  pp.  479  to  482.  6  Kemp  v.  Pryor,  7  Yes.  249,  250. 
Story's  Eq.  Jur.  §  64.  7  Francis'  Maxims,  Maxim  14.     Fonbl 

2  German   v.   Macliin,    6  Paige,   292.  Eq.  book  1,  ch.  4,  §  25.    Fitzsimmons  v 
Philips  v.  Thompson,  4  John.  Ch.  R.  149.  Ogden,  7  Cr.  2. 

3  Fonb.  Eq.  lib.  1.  ch.  4,  §  27,  and  notes.  8  Id. 

Kane  v.  Bloodgood.  7  John.  Ch.  R.  118.         °  Beekman  v.  Frost,  18  John.  R.  562. 

Murray  v.  Carter,  20  John    li.  576.  S.  C.  1   John.  Ch.  II.  300.    Fonbl.  Eq. 

'  2  R.  s.  :jiii.     C>de.  g  '.'7.  book  3,  ch.  3. 

5  Id. 


16  Introduction. 

as  "well  as  law :  qui  prior  est  tempore,  potior  est  jure.1  "Where  the  legal 
estate  is  outstanding,  equitable  incumbrances  must  be  paid  according  to 
J  priority  of  time.2  But  the  rule  is  only  applicable  to  mere  equities.3  If, 
therefore,  a  subsequent  incumbrancer,  in  order  to  protect  himself  against 
mesne  incumbrances,  obtains  a  conveyance  of  the  legal  estate,  equity 
will  not  deprive  him  of  his  legal  advantage,  unless,  at  the  time  he  lent 
his  money,  he  had  notice  of  the  mesne  incumbrance,  or  obtained  the  con- 
veyance of  the  legal  estate  after  decree ;  for  though  the  second  or  mesne 
incumbrance  be  prior  to  the  subsequent  incumbrance  in  point  of  time, 
yet  it  furnishes  a  merely  equal  equity  -with  the  subsequent  incumbrancer, 
who,  having  by  greater  diligence  obtained  the  legal  estate,  shall  be 
allowed  to  retain  his  advantage.4  But  if  the  second  or  mesne  incum 
brancer  has  obtained  a  decree  for  an  account,  a  subsequent  incumbrancer 
cannot,  by  buying  in  the  first  incumbrance,  defeat  the  eifect  of  such 
decree.5  The  doctrine  of  tacking  owes  its  origin  to  these  principles,  but 
does  not  apply  between  registered  mortgages  in  this  state.  The  registry 
is  notice  to  all  the  world,  and  they  must  be  paid  off  according  to  their  pri- 
ority.6 But  this  doctrine  belongs  to  a  subsequent  chapter,  and  is  referred 
to  here,  merely  to  illustrate  the  maxims  referred  to. 

/  If  the  equities  be  unequal,  the  preference  will  be  given  to  the  superior 
equity.7 

Another  maxim,  "he  who  seeks  equity  must  do  equity,"  is  of  equal 

j  importance,  and  lies,  says  Sandford,  J.,  at  the  foundation  of  equity  juris- 
prudence.9 Thus,  a  lessor  cannot,  in  the  same  complaint,  seek  a  forfeiture 
of  a  lessee's  term  and  an  injunction  against  a  breach  of  his  covenant  as  to 
the  particular  use  to  be  made  of  the  tenement.9  The  borrower  of  money 
upon  usurious  consideration  could  not,  before  the  revised  statutes  of  1830, 10 
maintain  a  bill  for  discovery  or  relief,  unless  upon  the  terms  of  paying 
the  lender  the  sum  actually  loaned,  with  lawful  interest.11 

1  Berry  v.  Mut.  Ins.  Co.  2  J.  Ch.  E.        7  Jeremey's  Eq.  Jur.  285,  28G.    Story's 
60S.    Wilkes  v.  Harper,  2  Barb.  Ch.  E.    Eq.  Jur.  §  64  d. 

338.    Bristol  v.  Hungerford,  2  Vern.  525.        8  Linden  v.  Hepburn,  3  Sand.  S.  C.  E. 
Brace  v.  Marlborough,  2  P.  Wms.  495.         671.     S.  C,  5  How.  Pr.  R.  188. 

2  Id.  9  Id. 

3  Blake  v.  Hungerford,  Pre.  Ch.  159.  10  1  E.  S.  .772,  §  8  ;  and  see  L.of  1837 
*  Turner  v.    Eichmond,  2  Vern.  81.     p.  487,  §  4. 

Hawkins  v.  Taylor,  id.  29.    Morett  v.        "  Post  v.  Bank  of  Utica,  7  Hill  391 

Parke,  2  Atk.  52.    Id.  347.  Rogers  v.   Eathbun,  1  J.  Ch.  Cas.  367 

6  Wortley  v.  Birkhead,  3  Atk.  811.  Tupper  v.  Powell,  id.  439.     Fanning  v 

•Bridgen  v.Carhartt,Hopk.234.  Grant  Dunham,  5  id.  142.  Livingston  v.  Harris 

v.  U.  S.  Bank,  1  Caines'  Cas.  in  Error,  3  Paige,  533,  S.  C.    11  Wend.  329.    Vilaa 

112.     Frost  y.  Beekman,  1  John.  Ch.  E.  v.  Jones,  1  Coins.  278.  Legoux  v.  Wante. 

898,  299      Parkist  v.  Alexande-  id.  394.  3  Har.  &  John.  184. 


Introduction.  47 

But  this  maxim  does  not  interfere  with  the  defence  of  usury,  if  the 
lender  seeks  the  aid  of  the  court  to  enforce  payment  of  the  security. 
Here  a  new  rule  applies.  It  is  a  settled  principle  of  the  common  law,  aays 
Chancellor  Walworth,  that  no  court  will  lend  its  aid  to  enforce  the  per- 
formance of  a  contract  which  is  contrary  to  public  policy,  or  any  contract 
or  agreement  which  was  intended  by  the  parties  to  contravene  the  pr -y 
visions  of  a  positive  law.1  Usury  may  thus  be  shown  as  a  defense  fo 
a  bill  of  foreclosure.2 

The  maxim,  equality  is  equity,  is  of  extensive  use.  It  is  applied  in  a 
variety  of  cases,  as  will  be  hereafter  seen,  as  in  cases  of  contribution 
between  sureties  and  others,  abatement  of  legacies  where  there  is  a 
deficiency  of  assets,  and  in  case  of  the  marshalling  and  distribution  of 
equitable  assets.3  Chancellor  Kent  says,  the  general  doctrine  is  to  encour- 
age, as  much  as  possible,  the  idea  of  equitable  assets,  because  equality 
in  the  payment  of  debts  is  equity,  and  the  rule  of  distribution  in  chan- 
cery is  founded  on  principles  of  natural  justice.4  A  court  of  equity,  in 
the  distribution  of  legal  assets,  follows  the  rule  of  law,  to  prevent  con- 
fusion in  the  administration  of  the  estate  ;  but  whenever  the  assets  are 
considered  as  equitable,  then  it  is  well  and  uniformly  settled  that  they 
are  to  be  distributed  among  all  the  creditors  j)ro  rata,  without  giving 
preference.5 

Equity  treats  a  thing  as  done  which  ought  to  be  done.  Thus,  it  con- 
siders land  directed  to  be  sold  and  converted  into  money  as  money  ;  and 
money  directed  to  be  employed  in  the  purchase  of  land  as  land.6  But  it 
may  be  material  to  remark,  that  nothing  is  looked  upon  inequity  as  done 
but  what  ought  to  be  done,  not  what  might  have  been  done ;  nor  will  equity 
consider  things  in  that  light  in  favor  of  every  body,  but  only  for  those 
who  had  a  right  to  pray  it  might  be  done.7  The  force  of  the  rule  is 
evinced  by  those  cases  in  which  it  has  been  held,  that  the  money  agreed 
or  directed  to  be  laid  out,  so  fully  becomes  land,  as,  1st,  not  to  be  person- 
al assets;  2d,  to  be  subject  to  the  curtesy  of  the  husband,  though  not  to 
the  dower  of  the  wife ;  3d,  to  pass  as  land  by  will,  if  subject  to  the  real 

1  Pratt  v.  Adams,  7  Paige,  615.  4  Moses*  v.  Murgatrojd,  1  J.  Ch.  C.  130. 

3  Ic,    Cowles  v.  Woodruff,  8  Conn.  35.  6  Id.  131. 

Morelew  v.  Armstrong,  3  Monroe,  2S9.  6  Crai?  v.  Leslie,  3  Wheat.  5G3,  577. 

Trumboe's  Ex'r  v.  Blizzard,  6  Gill  &  John.  Doughty  r.  Bull,   2   P.  Wms.  320-323. 

18.     Fanning  v.  Dunham,   5  J.  Ch.  E.  Yates  v.  Comjjton.  id.  308. 

136.  7  Crabtree  v.   Bramble,   3   Atk.   6o0. 

*  Francis'  Maxims,  9,  max.  3.   Burrell's  Burgesse  v.  Wheate,  1  W.  Black.  R.  123. 

Law  Diet.  426.     2  Will.  Ex.  1054  et  s«q.  Fonb.  Eq.  book  1,  ch.  6,  §  9,  and  notes. 
Fonb.  Eq.  B.  3,  ch  2.    Id.  book  4,  ch.  2, 
§1. 


48  Introduction. 

use  at  the  time  the  will  was  made  ;  4th,  not  to  pass  as  money,  by  a  gen- 
eral bequest  to  a  legatee  ;  but  it  will,  by  a  particular  description,  as  sc 
much  money  to  be  laid  out  in  land,  or  by  a  bequest  of  all  the  testator's 
estate  in  law  and  equity.1 

It  may  be  material  to  remark,  that  this  rule  of  considering  money  as 
land,  or  land  as  money,  does  not  apply,  if  the  special  purpose  for  which 
the  money  is  directed  to  be  laid  out  in  land,  or  the  land  to  be  converted 
into  money,  fail.2 

There  was  another  rule,  which  related  rather  to  the  sustaining  of  juris- 
diction, that  if  a  court  of  equity,  by  reason  of  any  infirmity  of  a  court  of 
law,  rightfully  obtained  jurisdiction  of  a  cause,  for  the  purpose  of  discovery, 
it  would  retain  jurisdiction  for  the  purpose  of  relief.  In  a  recent  case 
in  the  supreme  court  of  this  state,  on  a  bill  filed  before  the  code  was 
adopted,  and  of  course  governed  by  the  former  practice,  it  was  observed 
by  the  judge,  in  delivering  the  judgment  of  the  court,  that  there  must  be 
some  fact  appearing  on  the  face  of  the  bill,  which  either  shows  that  the 
parties  have  no  remedy  at  law  ;  or,  if  there  be  a  remedy  at  law,  there 
must  be  some  fact  apparent  which  shows  that  the  aid  of  a  court  of  equity 
is  necessary  to  render  the  remedy  certain,  adequate  and  effective.  If  the 
remedy  at  law  be  doubtful  or  obscure ;  if  it  cannot  reach  the  whole  mis- 
chief, and  secure  the  whole  right ;  if  it  requires  a  multiplicity  of  suits. 
and  the  like,  a  court  of  equity  in  general  has  jurisdiction.  Fraud  and 
trusts  are  subjects  with  which  courts  of  equity  are  most  frequently  called 
to  deal.  In  cases  of  fraud,  a  court  of  law,  in  most  cases,  has  a  concur- 
rent jurisdiction,  but  this  does  not  supersede  the  necessity  of  a  resort  to 
the  equity  power  of  the  court.  And  if  once  the  jurisdiction  has  right- 
fully attached,  it  is  made  effectual  for  the  purposes  of  complete  relief 
When  a  court  of  chancery  has  once  gained  possession  of  the  cause,  if  it 
can  determine  the  whole  matter,  says  Lord  Nottingham  in  Parker  v.  Doe, 
(2  Ch.  Cases,  200,  201.)  it  will  not  be  the  handmaid  of  other  courts,  "nor 
be^et  a  suit  to  be  ended  elsewhere."  This  was  the  settled  doctrine  of  the 
court  of  chancery  in  this  state  under  the  former  constitution.  "When 
the  court  had  gained  jurisdiction  of  a  cause  for  one  purpose,  it  re- 
tained it  generally  for  relief.3  In  like  manner  it  was  well  settled,  that 
the  enlargement  of  the  jurisdiction  of  courts  of  law,  so  as  to  embrace 
matters  formerly  belonging  to  equity  alone,  does  not  oust  the  latter  of 

'Fonb.  Treatise,  book  l,ch.  6,  §9,  note.  J.  Ca9.  431,  per  Kent,  J.    Rathbun  v. 

4  Id.  Warren,  10  John.  5S7.    King  v.  Baldwin 

1  Conro  v.  Port  Henry  Iron   Co.    12  17  id.  3S4. 
Barb.  61,  62.     Armstrong  v.  Gilchrist,  2 


Introduction.  49 

jurisdiction.     It  is  thus  that  the  subjects  of  concurrent  jurisdiction  were 
constantly  increasing.' 

But  this  has  ceased  to  be  of  any  practical  importance  in  this  state, 
since  the  abrogation  of  the  old  forms  of  remedy,  and  the  consolidation  of 
equity  and  legal  jurisdiction  in  the  same  court.  The  party  under  the 
code,  can  seek  such  relief  as  the  facts  of  the  case  will  require,  without 
the  clanger  of  being  turned  over  to  another  court,  or  to  another  form  of 
remedy,  or  of  being  subjected  to  any  other  inconvenience,  in  case  he  has 
misjudged,  than  to  an  amendment.  If  the  action  be  conducted  by  coun- 
sel of  industry  and  learning,  and  the  law  be  administered  by  an  enlight- 
ened tribunal,  seeking  only  for  the  truth  and  justice  of  the  case,  no  rea- 
son is  perceived  why  the  object  sought  to  be  obtained  by  the  action  under 
the  code  may  not  be  accomplished  with  safety  to  all  interests,  and  with 
reasonable  dispatch. 

The  foregoing  observations  must  suffice  as  a  general  introduction  of 
,:ur  subject. 

In  further  treating  of  the  subject  of  equity  jurisprudence,  we  shall 
oring  our  discussion  under  the  general  head  of  Accident  and  Mistake, 
Account,  Fraud  and  Trust ;  and  shall  subjoin  an  account  of  the  jurisdic- 
tion of  the  court  over  those  peculiarly  entitled  to  its  protection,  as 
Infants,  Idiots  and  Lunatics,  and  Married  Women ;  under  which  latter 
head  we  shall  briefly  treat  of  the  doctrine  of  Divorces,  which,  in  this  state, 
n  is  long  been  an  appendage  of  the  jurisdiction  of  our  courts  of  equity. 
'VYe  shall  notice  also  the  jurisdiction  of  courts  of  equity  in  Dower  and 
Partition. 

Under  the  head  of  Fraud,  we  shall  treat  of  some  of  the  usual  preven- 
tive remedies,  to  which  it  has  given  rise,  such  as  Bills  of  Peace,  Quia 
Timet,  Interpleader,  the  Marshaling  Securities,  Injunctions,  and  for 
Specific  Performance. 

Under  the  head  of  Trusts,  the  doctrine  will  be  discussed  under  the 
usual  heads  of  Express  and  Implied  Trusts :  and  the  various  subjects 
whicn  are  usually  referable  to  that  head,  such  as  Marriage  Settlements, 
Assignments  in  Trust,  Mortgages,  Legacies,  Marshaling  of  Assets  and 
Administration,  Charitable  Uses,  Wills  and  Testaments,  &c,  will  be 
brought  under  review. 

We  shall  also  briefly  treat  of  the  jurisdiction  of  courts  of  equity  in 
Dower,  Partition  and  Partnership,  and  of  proceedings  against  corporations 
in  equity. 

'&6  fit  LuVElVon;  Keinp  v.  Prvor,  7  Ves.  249,  250.  Wesley  Church  v. 
Meor^WSWftNfft.AT  LAW 

EQ.  JfijSB  ANGELES,    CAL.  7 


CHAPTER  I. 


OP    THE    RELIEF    AFFORDED    BY    EQUITY    IN    CASES    OF    ACC  DENT 

AND    MISTAKE. 


SECTION"   I. 


OP  ACCIDENT. 


THE  remedy  which  courts  of  law  afforded  in  cases  of  accident,  being  in 
many  cases  imperfect  and  inadequate,  gave  occasion  to  courts  of  equity 
to  exercise  jurisdiction  over  this  subject.  This  jurisdiction  is  said  by  Lord 
Eldon  to  be  very  ancient,  founded  upon  a  notion,  acknowledged  until  a 
very  late  period,  that  there  was  no  remedy  upon  a  lost  bond,  as  you  could 
not  make  profert.i  It  was  not  settled  in  England,  that  a  deed  which  had 
been  lost  or  destroyed  by  time  or  accident  could  be  pleaded  according  to 
the  truth  of  the  case,  without  profert,  until  the  close  of  the  last  century.2 
And  in  many  cases,  though  a  court  of  law  will  afford  relief,  still  equity 
entertains  jurisdiction,  as  affording  a  more  perfect  remedy.  With  us, 
under  the  code,  it  is  obvious  that  the  plaintiff  may  now  in  the  same  com- 
plaint ask  for  relief  upon  both  grounds,  if  the  facts  be  so  stated  as  to 
justify  it.3  It  is  nevertheless  important  that  we  should  have  correct 
notions  of  the  class  of  accidents  against  which  relief  may  be  obtained. 

By  accident,  said  Lord  Cowper,  is  meant  when  a  case  is  distinguished 
from  others  of  the  like  nature,  by  unusual  circumstances.4  Mr.  Mad- 
dock  adopts  the  same  definition.5  Mr.  Jeremey  defines  accident,  in  the 
sense  used  in  a  court  of  equity,  to  be  "  an  occurrence  in  relation  to  a  con- 
tract, which  was  not  anticipated  by  the  parties  when  the  same  was  entered 

1  E.  India  Co.  v.  Boddam,  9  Ves.  4G6.         4  Earl  of  Bath  v.  Sherwin,  10  Mod.  R 

2  Read  v.  Brookman,  3  T.  R.  15.  Smith     1,  3. 

v.  M'Gowan,  3  Barb.  S.  C.  R.  408.  5  1  Madd.  Ch.  Pr.  21. 

'•  Code  of  1852,  §  167. 

Col) 


52  Of  Accident.  [Ch.  1 

into,  and  which  gives  an  undue  advantage  to  one  of  them  ovei  the  other 
in  a  court  of  law."1  The  first  of  these  definitions  is  too  loose  and  general, 
and  the  other,  by  confining  it  to  contracts,  does  not  cover  the  whole 
ground.  It  is  moreover  defective,  in  not  excluding  cases  of  unanticipated 
occurrences,  resulting  from  the  negligence  or  misconduct  of  the  party 
seeking  relief.  The  definition  given  by  Mr.  Justice  Story,  in  his  com- 
mentaries, is  far  more  accurate.  "  By  the  term  accident  is  intended,  not 
merely  inevitable  casualty,  but  such  unforseen  events,  misfortunes,  losses, 
acts,  or  omissions,  as  are  not  the  result  of  any  negligence,  or  misconduct 
in  the  party."2 

The  most  ordinary  instances  in  which  this  jurisdiction  is  exercised  are 
those  of  lost  bonds,  and  negotiable  securities,  the  non-production  of  which 
would  defeat  the  action.  And  in  these  cases  the  decree  is  not  confined  to 
a  re-execution,  but,  to  avoid  circuity  of  action,  extends  to  payment.3 
The  jurisdiction  of  courts  of  equity  in  these  cases  is  more  conveniently 
exerted  than  that  of  courts  of  law ;  especially  when  considered  as  attaching 
upon  several  defendants,  all  liable  to  the  same  debt ;  with  mutual  reme- 
dies against  each  other,  to  make  a  complete  and  effectual  adjustment.  In 
general,  a  party  suing  upon  a  lost  instrument  should  bring  before  the 
court  all  the  parties  liable,  to  the  intent  that  the  question  of  fact,  upon 
which  the  jurisdiction  arises,  may  be  decided,  not  only  between  the  plain- 
tiff and  the  defendants,  but  as  between  the  defendants  themselves,  and 
that  the  equities  subsisting  between  them  may  be  properly  adjusted.  A 
further  reason  for  entertaining  jurisdiction  in  equity,  in  cases  of  this  kind, 
grows  out  of  the  facility  with  which  equity  can  inquire  into  all  the  circum- 
stances and  grant  such  indemnity  as  justice  may  require.4  In  this  state, 
since  the  code,  the  action  cannot  be  entertained  for  discovery  alone  in 
aid  of  another  action.5  The  complaint  must  demand  the  relief  which  the 
facts  stated  therein  require.  And  it  is  presumed  that  the  existence  of 
the  instrument,  and  the  circumstances  of  the  loss,  must  be  duly  verified 
oy  the  party,  and  it  must  be  sworn  not  to  be  in  his  possession  or  under 
his  control.6 

The  jurisdiction  in  the  case  of  lost  bonds  and  instruments  under  seal  ori- 
ginates, as  has  been  said,  in  the  doctrine  of  profert,  at  law.  In  the  case  of 
negotiable  securities,  it  originates  in  a  different  way.  An  action  at  law  may 
be  brought  on  such  security,  Avithout  making  profert,  and  complete  relief 

1  Jeremjs'  Ea.  Jur.  B.  3,  pt.  2,  Introd.  5  Code,  §  389,  and  see  Whitfield  v. 
p.  358.  Fausatt,  1  Yes.   292,  393.     Bromley  v\ 

2  Story's  Eq.  Jur.  §  78.  Holland,  7  id.  10,  20. 
s  Adams'  Equity,  1G7,  337.  6  Adams'  Eq.  107. 

*  East  India  Co.  v.  Boddam,  9  Yes.  4GG. 


Cli.  1.1  Of  Accident.  5P 

may  be  granted  in  that  court.  But  if  the  instrument  be  negotiable,  and 
be  lost  before  it  is  dishonored,  it  may  pass  into  the  hands  of  a  bona  fide 
holder,  against  whom  no  defense  can  be  made.  A  court  of  law,  too,  re- 
quires that  the  plaintiff  suing  upon  negotiable  paper  should  produce  it 
at  the  trial,  and  deliver  it  up.  This  he  cannot  do  if  it  be  lost.  And 
hence  equity  will  entertain  jurisdiction  and  grant  relief,  on  a  proper  in- 
demnity being  given.1  If  the  security  be  not  negotiable,  it  was  said  by 
Sir  William  Grant,  in  Mossop  v.  Eadon,2  that  its  loss  will  not  prevent  the 
creditor  from  recovery  at  law,  and  will  not  therefore  create  a  jurisdiction 
in  equity.  But  this  doctrine  seems  to  have  been  overruled  in  a  subsequent 
case,  in  the  king's  bench.3  In  that  case  the  indorser  of  a  bill  of  exchange 
having  lost  the  same  after  it  became  due,  sought  to  recover  against 
the  drawer,  in  an  action  at  law,  on  tendering  an  indemnity,  but  the 
court  held  he  could  not  recover  at  law.  Lord  Tenterden  said  it  was  the 
duty  of  the  holder,  on  receiving  payment,  to  deliver  up  the  bill,  and  the 
drawee  was  not  bound  to  pay  unless  the  bill  was  delivered  up  to  him. 
His  lordship  in  conclusion  said,  that  the  holder  was  not  without  remedy. 
He  may  tender  sufficient  indemnity  to  the  acceptor,  and  if  it  be  refused 
he  may  enforce  payment  thereupon,  in  a  court  of  equity.  The  English 
cases  are  not  free  from  contradiction,  but  the  present  rule  seems  to  be  as 
stated  by  Lord  Tenterden,  above.4  The  supreme  court  of  New- York,  in 
1824,  held,  that  an  action  at  law  could  not  be  sustained  on  a  negotiable 
promissory  note  papable  to  bearer,  on  proving  its  loss,  though  such  loss 
happened  after  it  became  due.  If  the  note  were  destroyed,  they  thought 
an  action  at  law  could  be  maintained,  and  so  if  it  was  not  negotiable. 
They  said  the  appropriate  remedy  was  in  equity,  which  alone  could  afford 
the  defendant  adequate  indemnity  against  future  liability.5  The  doctrine 
that  the  maker  was  not  bound  to  pay  unless  the  bill  or  note  was  given 
up  to  him  as  his  voucher  ;  or  upon  tender  of  ample  indemnity  against  any 
future  liability,  was  repeated  in  a  later  case.6  Rowley  v.  Ball  was  decided 
before,  and  Smith  v.  Rockwell  after,  the  R.  S.  enacted  that,  in  any  suit 
founded  upon  any  negotiable  promissory  note  or  bill  of  exchange,  or  in 
which  such  note,  if  produced,  might  be  allowed  as  a  set-off  in  the  defense 
of  any  suit,  if  it  appears  on  the  trial  that  such  note  or  bill  was  lost  while 

1  Macartney  v.  Graham,  2  Sim.  2S5.  parte  Greenway,  6  id.  812.    Mossop  v. 

J  16  Ves.  43.  Eadon,  16  id.  430.     1  id.  34.     5  id.  338. 

3  Hansard,  v.  Robinson,  7  Barn  &  Cres.  6  id.   112,  Davies  v.  Dodd,  4  Price,  176 

90.  Chitty  on  Bills,  8th  ed.  290,  and  notes. 

•  See  "Walmesly  v.  Child,  1  Ves.  sen.  5  Rowley  v.  Ball,  3  Cowen,  303. 

338,  346,  347.    Leftly  v.  Mills,   4  T.  R.  6  Smith  v.  Rockwell,  2  Hill,  482. 
170.     Toulmin  v.  Price,  5  Ves.  238.     Ex 


54  Of  Accident.  [  Ch.  1. 

\t  belonged  to  the  party  claiming  the  amount  due  thereon,  parol  or  other 
evidence  of  the  contents  thereof  may  be  given,  on  such  trial ;  and  notwith- 
standing such  note  or  bill  was  negotiable,  such  party  shall  be  entitled  to 
recover  the  amount  due  thereon,  as  if  such  note  or  bill  had  been  pro- 
duced.1 This  statute  only  extends  to  the  remedy,  and  applies  only  to 
negotiable  paper.2 

The  supreme  court  of  the  United  States  sustained  an  action,  without 
evidence  of  the  destruction  of  the  note,  there  being  undoubted  evidence 
of  its  loss,  and  no  motive  or  inducement  to  withhold  it.3 

If  the  party  voluntarily  destroy  a  note,  he  will  not  be  permitted  to 
give  secondary  evidence  of  its  contents,  and  his  remedy  thereon  is  gone 
It  is  only  when  the  instrument  is  lost,  without  a  fraudulent  design,  thai 
he  is  permitted  to  recover  thereon.4 

A  recent  case  in  the  court  of  appeals  of  the  state  of  New-Yorl. 
may  be  referred  to  this  head  of  accident,  although,  perhaps,  it  woul^ 
not  be  out  of  place  under  the  head  of  mistake.3  The  plaintiff,  in  Nov. 
1843,  entered  into  a  lease  of  a  tavern  stand  in  the  city  of  Rochester, 
from  the  defendants,  for  eight  years  from  the  first  day  of  April  there- 
after, for  the  annual  rent  of  one  thousand  dollars,  payable  quarterly ; 
the  lease  containing  the  usual  covenants  for  the  payment  of  rent.  After 
the  execution  of  the  lease,  and  before  the  commencement  of  the  term  or 
the  entry  of  the  lessee,  the  premises  were  destroyed  by  fire,  without  the 
fault  of  either  party.  The  landlord  insisted  on  the  payment  of  the  rent, 
and  brought  an  action  to  recover  the  same.  The  plaintiff  filed  his  bill  in  t 
chancery  to  restrain  that  action,  and  praying  to  reform  the  lease,  by  in- 
serting in  it  a  clause  providing  for  the  determination  of  the  lease 
and  the  covenants  therein,  on  the  destruction  of  the  premises  by  fire, 
and  upon  such  correction  he  prayed  for  relief  against  the  said  action. 
The  ground  of  the  bill  was,  that  the  parties  agreed,  at  the  time  the  con- 
tract was  consummated,  that  the  lease  should  contain  that  clause,  and 
that  the  same  had  been  inadvertently  omitted  by  the  scrivener  in  preparing 
the  lease,  and  the  omission  was  not  discovered  by  the  parties  when  the 
lease  was  executed.  As  claimed  by  the  plaintiff,  this  was  an  accidental 
omission  of  a  material  part  of  the  contract,  without  the  fault  of  the 
plaintiff.  The  contract  as  made  excused  the  plaintiff  from  the  pay- 
ment of  rent,  on  the  contingency  which  had  happened,  but,  as  reduced  to 
writing  and  signed,  it  bound  him  to  pay  rent  during  the  term,  though  the 

1  2  R.  S.  406,  §  75.  3  Eenner  v.  Bank  of  Columbia,  9Whea< 

a  Smith  v.  Rockwell,  2  Hill,  484.  Blade    ton,  596. 
T.  Noland,  12  Wend.  173.  4  Blade  v  Noland,  12  Wend.  173. 

6  Wood  v.  Hubbell,  MS.  June  7,  1853. 


Ch.  1.]  Of  Accident.  55 

premises  were  destroyed  by  fire.  The  court  below  dismissed  the  bill, 
Decause  the  agreement  was  not  sufficiently  proved ;  but  the  court  of  ap- 
peals differed  from  thf^n  on  that  point,  and  reversed  the  decree  of  the 
court  below,  and  ordered  the  instrument  to  be  reformed  according  to  the 
prayer  of  the  bill.  The  omission  by  the  scrivener  of  the  material  part 
of  the  agreement  was  accidental,  and  without  the  fault  of  either  party. 

If  the  form  of  a  deed  or  conveyance  is,  by  accident  or  mistake,  con- 
trary to  the  intention  of  the  parties,  in  their  contract,  on  the  subject,  a 
court  of  equity  will  interfere  to  prevent  one  party  from  taking  an  unfair 
advantage  thereof.1  So  a  court  of  equity  will  supply  words  omitted  in 
a  deed,  in  order  to  give  effect  to  the  intention,  if  it  be  clear  and  ap- 
parent. Words  of  inheritance  have  been  thus  inserted,  so  as  to  convert 
a  life  estate  into  a  fee.2 

The  plaintiff  placed  his  son  with  an  attorney  and  gave  £120  with  £' ^ 
Mm.  and  articles  were  made  and  executed  by  which  it  was  provided,  that 
in  case  the  attorney  died  within  a  year,  that  then  £60  of  the  money 
should  be  returned.  It  happened  that  the  attorney  died  within  three 
weeks  after  sealing  the  articles,  and  payment  of  the  money.  The  court, 
notwithstanding  the  parties  had  provided  for  accidents  to  a  certain  ex- 
tent, decreed  that  100  guineas  should  be  paid  back.  In  this  case  the 
death  of  the  attorney  was  treated  as  an  accident ;  and  as  the  sub- 
stantial part  of  the  consideration  for  the  sum  deposited  had  failed,  equity 
required  that  100  guineas  of  the  money  should  be  refunded.3  This  de- 
cision, the  master  of  the  rolls,  (Lord  Kenyon,)  in  Hale  v.  Webb,  (2  Bro. 
Ch.  R.  80,)  observed,  "  carried  the  jurisdiction  as  far  as  could  be."  At 
law  it  has  been  held,  that  a  partial  failure  of  consideration  of  a  note 
given  on  the  purchase  of  real  property  is  not  inquirable  into  in  an  action 
upon  the  note,  but  the  party  must  seek  relief  in  equity.4  The  cases  on 
this  point  are  in  some  measure  conflicting. 

The  ground  on  which  equity  affords  relief  against  penalties  is  referred 
to  this  head  of  Accident.  It  relieves  against  payment  at  the  day,  by 
requiring  that  interest  should  be  paid  from  the  time  of  the  default.5 
The  common  case  of  a  bond,  conditioned  for  the  payment  of  money,  se- 
cured by  a  mortgage,  when  the  title  of  the  mortgagee  becomes  absolute 
at  law,  depends  on  the  same  principle,  but  will  more  properly  be  con 

1  Charoness  v.  Crutchfield,  2  Iredell's  s  Newton  v.  Rose,  1  Vern.  460.  Fonb. 
Eq.  Rep.  148.  Eq.  B.  1,  ch.  5,  §  8. 

2  Higginbotham   v.  Burnet,   5   John.  *  Greenleaf  v.  Cook,  2  "Wheat.  13. 
Ch.  R.  184.    Horry  v.  Horry,  2  Desaus.  *  Grimstone  v.  Bruce,  2  Vern.  594. 
115.     Desell  v.  Casey,  3  id.  84. 


5G  Of  Accident.  [Oh.  1, 

sidered  under  the  head  of  Mortgages.  Lord  Hardwicke  laid  down  the 
rule  thus  :'  "  Equity  will  relieve  against  almost  all  penalties  whatsoever ; 
against  non-payment  of  money  at  a  certain  day ;  against  forfeitures  of 
copyholds.  But  they  are  all  cases  where  the  court  can  do  it  with  safety 
to  the  other  party ;  for  if  the  court  cannot  put  him  into  as  good  condi- 
tion as  if  the  agreement  had  been  performed,  the  court  will  not  relieve." 
So  it  is  a  standing  rule  of  the  court,  that  a  forfeiture  shall  not  hind,  when 
.1  thing  may  be  done  afterwards,  or  any  compensation  may  be  made  for 
t.  Forfeitures  are  odious  in  law.  Courts  of  law,  circumscribed  as  their 
jurisdiction  is,  struggle  against  them.  If  the  landlord  does  any  thing 
receiving  rent  for  example,  relief  may  be  had,  without  the  necessity  of 
coming  to  equity.2  Unless  it  is  plain  that  full  compensation  can  be 
given,  so  as  to  put  the  other  party  in  the  same  situation  precisely,  a 
court  of  equity  ought  not  to  act ;  for  such  jurisdiction  would  be  arbi- 
trary.3 

It  is  on  this  principle  of  compensation  that  equity  sometimes  relieves 
against  the  strict  performance  of  conditions  subsequent.*  If  such  condi- 
tion becomes  impossible,  by  the  act  of  God,  or  of  the  law,  or  of  the  obli- 
gee, &c.,  the  estate  will  not  be  defeated  or  forfeited.5  The  rule  is  the 
same  where  the  condition  subsequent  is  unlawful.6 

The  relief  which  equity  affords  in  the  case  of  confusion  of  boundaries, 
is  referable  to  the  head  of  Accident.  Where  lands  have  become  mixed 
or  confounded  without  the  fault  of  the  plaintiff,  equity  will  appoint  a 
commission  to  settle  the  boundaries,  and,  upon  confirming  the  report, 
make  a  proper  decree  between  the  parties.7  From  the  simplicity  of  our 
conveyances,  and  the  recent  settlement  of  the  country,  cases  requiring 
this  relief  will  not  be  of  frequent  occurrence. 

Having  shewn  under  what  circumstances  equity  will  relieve  against 
accidents,  it  may  be  proper  to  refer  to  some  of  the  cases  in  which  no 
relief  will  be  granted.  It  has  been  repeatedly  held,  that  it  will  not  relieve 
against  penalties  in  the  nature  of  stipulated  damages.8  In  matters  of  posi- 
tive contract,  as  where  the  tenant  covenants  to  pay  rent,  or  to  repair  during 
the  terni,  and  to  leave  the  premises  in  as  good  condition  at  the  end  of  the 

a  Rose  v.  Rose,  Amb.  332.  4  Popbam  v.  Bamfield,  1  Vera.  83. 

2  Cage  v.  Russell,  2  Ventris,  352.  San-  6  Co.  Lit.  206,  b. 

ders  v.  Pope,  12  Ves.  290,  291.     Jack-  8  Perkins,  §  139. 

son  v.  Allen,  3  Cowen,  220.     Clark  v.  »  Korris  v.  Le  Neve,  3  Atk.  82. 

Cummings,  5  Barb.  339.     Nbrtbeote  v.  «  skinner  v.  Dayton,  2  J.  Cb.  R.  526. 

Duke,  Amb.  511.  Woodard  v.  Gyles,  2  Vera.  119.   Rolfe  v. 

9  Sanders  v.  Pope,  12  Ves.  291.   Davis  Peterson,  6  Bro.  P.  C.  470. 
v.  We*t,  id.  475, 


Ch.  1.]  Of  Accident.  57 

term  as  at  its  commencement,  and  the  premises  be  accidentally  destroyed 
by  fire,  equity  affords  no  relief.  The  reason  is  that  the  tenant  might 
have  provided  for  this  contingency  in  his  contract,  and  having  made  no 
such  provision,  he  is  liable  on  his  covenant  for  rent,  though  the  premises 
be  destroyed  by  fire,  and  cannot  be  relieved  in  equity.1  In  Wood  v. 
Hubbell,8  the  destruction  of  the  building  by  fire,  after  the  date  of  the 
lease,  but  before  the  commencement  of  the  term,  was  held  by  the  su- 
preme court  to  absolve  the  lessee  from  the  payment  of  rent ;  but  the  court 
of  appeals  differed  from  the  supreme  court  on  this  point,  and  the  case 
was  decided  on  other  grounds.3 

A  court  of  equity  will  not  afford  relief  against  an  accident  which  has  ? 
happened  in  consequence  of  the  gross  negligence  of  the  party  seeking  > 
relief.     There  is,  says  Chancellor  Kent,  no  such  head  of  equity  jurisdic- 
tion.4 

Although  equity  in  many  cases  relieves  to  prevent  the  divesting  of 
an  estate,  yet  a  condition  precedent,  to  be  performed  before  an  estate 
will  vest,  must  be  literally  performed  ;  and  the  court  never  interferes 
to  vest  an  estate  where  it  will  not  vest  in  law,5  unless  the  party  who 
was  to  take  the  estate,  on  non-performance  of  the  condition,  had  used  an 
indirect  practice  or  contrivance  to  prevent  its  performance.6 

Where  an  estate  was  devised,  upon  condition  that  if  the  first  devisee 
should  refuse  or  neglect  to  comply  with  the  condition ;  viz.  within  six 
months  after  the  testatrix's  death,  to  release  all  demands  upon  her  as  execu- 
trix of  A.  or  otherwise  established,  with  a  limitation  over ;  this  was  held 
to  be  a  conditional  limitation,  and  a  failure  in  not  executing  the  release 
was  held  not  to  be  relievable.7 

Equity  grants  no  relief  against  forfeiture  under  a  by-law  of  an  incor- 
porated company  providing  that  the  members  shall  receive  notice  of  de- 
fault in  paying  a  call,  and  incur  the  forfeiture  by  non-payment  ten  days 
after  notice  sent ;  and  this,  notwithstanding  the  lapse  arose  from  ignor- 
ance of  the  call,  from  accidental  circumstances,  and  absence  from  town 
when  the  notice  was  sent.8     This  refusal  was  put  upon  the  ground,  that 


'  Monk  v.  Cooper,  2  Str.  763 ;  S.  C.  Fonb.  Eq.  B.  1,  ch.  3,  §  3.     Marine  Ins. 

Ld.  Ray.  1477.     Balfour  v.  Weston,  1  T.  Co.  v.  Hodgson,  7  Cr.  336. 

R.  310.     Doe  v.  Sandham,  id.  705,  710.  B  Carv  v.  Bertrie,  2  Vern.  333.     Pop- 

Ilallet  v.  Wylie,  3  John.  R.  44.     Gates  v.  ham  v.  Bamfield,  1  id.  83.    3  Chan.  Cas. 

Green,  4  Paige,  355.    Willard  v.  Tillman,  129.    2  Freeman,  220. 

.9  Wend.  358.  6  Gary  v.  Bertrie,  2  Vern.  344. 

2  Wood  v.  riubbell,  5  Barb.  601.  7  Simpson  v.  Alckers,  14  Ves.  341. 

3  See  ante  and  MS.  8  Sparks  v.  Liverpool    A'ater  Works 

4  Penny  v.  Martin,  4  J.  Ch.  R.  569.     1  Co.  13  Ves.  428. 
K  3.   Jen                                             8 


58  Of  Accident.  [Oh.  1. 

the  accident  arose  partly  from  a  -want  of  proper  precaution  on  the  part 
of  the  stockholder,  and  also  that  compensation  could  not  be  made,  and 
that  it  would  be  against  sound  policy  to  allow  a  writ  to  be  brought  to  be 
relieved  against  any  default.  A  company  could  not  carry  on  its  business 
npon  such  terms.  The  same  rule  of  refusing  relief  applies,  it  seems,  to 
subscribers  to  a  government  loan,  neglecting  to  make  a  further  payment, 
•md  thus  forfeiting  the  installments  already  made.1 

Relief  will  not  be  granted  against  a  forfeiture  of  a  lease,  for  willful 
»vaste,  though  it  admits  of  compensation  :2  as  where  the  tenant  grants 
.leases,  works  a  quarry,  cuts  down  timber,  &c.  against  repeated  admonitions. 

Nor  will  a  court  of  equity  relieve,  where  a  reference  has  been  made  to 
arbitration,  and  the  judgment  of  the  arbitrators  is  not  given  in  the  time 
and  manner,  according  to  the  agreement.  The  court  cannot  substitute 
themselves  for  the  arbitrators  and  make  the  award.3  So,  where  there  is 
a  contract  for  a  sale  at  a  price  to  be  fixed  by  an  award  during  the  life  of 
the  parties,  and  one  of  them  dies  before  the  award  is  made,  the  contract 
falls ;  and  equity  will  not  enforce  it  upon  the  ground  of  accident.  The 
death  of  the  party  is  a  revocation  of  the  award,  and  the  chancellor  said 
there  is  no  instance,  where  the  medium  of  arbitration  or  umpirage,  re- 
sorted to  for  settling  the  terms  of  a  contract,  having  failed,  equity  has 
assumed  jurisdiction  to  determine,  that  though  there  is  no  contract  at  law, 
there  is  a  contract  in  equity.4 

Nor  will  a  court  of  equity  relieve  against  accidents  which  prevent  vol- 
untary dispositions  of  estates.5  As  where  a  testator  promised  to  make  a 
further  codicil  to  his  will,  and  to  give  to  the  plaintiff  £15  per  annum  more 
than  he  had  already,  but  died  without  doing  so.6  A  legatee  has  no  inde- 
pendent right  to  a  legacy,  until  consummated  by  law,  and  can  take  only 
by  the  bounty  of  the  testator.  He  has  no  equity  that  can  be  enforced 
against  the  estate,  because  the  testator  has  failed  to  make  him  a  subject 
of  his  bounty. 

The  cases  where  equity  will  relieve,  and  where  it  will  not  relieve,  on 
ihe  ground  of  accident,  may  be  greatly  extended.  Many  of  them  will  be 
considered  under  the  head  of  mistake.  Indeed,  the  line  which  separates 
the  two  classes  of  cases  is  often  nearly  imperceptible,  and  for  all  practical 
purposes  they  may,  in  many  instances,  be  as  well  considered  under  one 
head  as  the  other. 

1  13  Ves.  435.  3  Oooth  v.  Jackson,  6  Ves.  34. 

a  Thomas  v.  Porter,  1  Oh.  Cases,  95.        *  Blundell  v.  Bretargh,   17  Ves   241, 

Pre;,  in  Ch.  56S,  574.    Pearley  v.  Soroer-  242. 

set,  1  Str.  447.     Smith  v.  Parklmrsi,  3         s  Whiton  v.  Rnssel,  1  Atk.  449    • 
Atk.  141.  e4id 


Ch.  l.J  Mistake.  59 

From  the  foregoing  review,  it  would  seem,  that  to  entitle  a  party  tc 
relief  on  the  ground  of  accident,  the  plaintiff  must  establish  a  clear  right, 
which  cannot  otherwise  be  enforced,  in  a  suitable  manner ;  or  that  he  will 
ne  subjected  unjustly  to  loss,  without  blame  or  misconduct  on  his  own 
part ;  and  that  his  equity  is  superior  to  that  of  the  party  against  whom 
he  seeks  relief.1 


SECTION  II. 


OF    MISTAKE. 


A  correct  notion  of  what  is  understood  by  a  court  of  equity,  by  the 
term  ?nistake,  is  indispensable  to  a  just  understanding  of  the  cases  which 
have  been  decided  on  this  subject.  Dr.  Webster  defines  mistake  thus  : 
'•'An  error  in  opinion  or  judgment;  misconception.  2,  a  slip  ;  a  fault;  an 
error."  This  definition  is  too  narrow,  as  it  does  not  exclude  the  idea  of 
the  error  being  intentional.  Mr.  Jeremy  defines  it  to  be  "  that  result  of 
ignorance  of  law  or  of  fact  which  has  misled  a  person  to  commit  that 
which,  if  he  had  not  been  in  error,  he  would  not  have  done."2  Mr.  Jus- 
tice Story  says,  "  it  is  sometimes  the  result  of  accident  in  a  large  sense ; 
and  as  contradistinguished  from  it,  it  is  some  unintentional  act,  or 
omission  or  error,  arising  from  ignorance,  surprise,  imposition  or  mis- 
p laced  confidence."3  This  latter  is  the  more  comprehensive  definition  of 
the  two. 

The  usual  division  of  this  subject  is  into,  1st,  mistake  of  law;  and  2d, 
mistake  of  fact.  In  some  of  the  cases  a  distinction  has  been  sought  to 
be  made  between  ignorance  of  the  law  and  mistake  of  the  law,  and  it 
has  been  insisted,  that  in  the  first  case  the  party  is  remediless,  and 
the  latter  he  is  not.4  An  examination  of  the  cases  will  show  that  no  such 
distinction  exists.  Ignorantia  facti  excicsat,  ignorantia  juris  non  ?zcu 
sat,  is  a  well  known  maxim.5  This  maxim  is  alike  applicable  to  courts  of 
law  and  courts  of  equity.6  A  party  may  be  relieved  m  equity  where  the  | 
mistake  he  has  committed  has  been  the  result  of  his  ignorance  of  a  fact  i 


\- 


1  Story's  Eq.  §  109.    Aladd.  Ch.  Pr.  p.  C.  R.   623,   and  per  Senator  Paigo-  in 

4-D,  &c.  Charaplin  v.  Laytin,  18  Wend.  423.    Hull 

-  Jeremy's  Eq.  Juris.,  book  3,  ch.  2,  v.  Reed,  2  Barb.  Ch.  R.  505. 
p.  353.  6  Br.  Maxims,  190. 

3  Story's  Eq.  Juris.  §  110.  °  BiH>ie  v.  Lumley,  2  East,  469. 

*  Lawrence  v.  Beaubien,  2  Bailey's  S. 


60  Mistake  of  Law.  [Ch.  1 

material  to  the  regulation  of  his  conduct,  but  not  if  it  has  been  the  result 
of  ignorance  cr  mistake  of  the  law. 

The  case  which  is  generally  quoted  as  establishing  the  distinction 
between  ignorance  of  the  law  and  mistake  of  the  law.  is  Lansdowne  v. 
Lansdowne,  decided  by  Lord  Chancellor  King.1  It  is  very  meagerly 
reported.  From  the  report  it  appears,  that  the  second  of  four  brothers 
died,  and  the  eldest  and  the  youngest  both  claimed  his  estate.  They 
referred  the  question  to  a  schoolmaster,  who  decided  that  the  youngest 
was  entitled  to  the  property,  because  lands  could  not  ascend.  Upon  this, 
the  parties  agreed  to  divide  the  estate  between  them,  and  the  eldest 
brother  executed  a  release.  The  chancellor  decreed  that  the  deed  should 
be  delivered  up,  '■  being  obtained  by  mistake  and  misrepresentation." 
The  facts  are  so  briefly  stated,  that  it  is  impossible  to  say,  with  certainty, 
on  what  ground  the  decision  proceeded.  If  there  was  any  intentional 
misrepresentation,  either  about  the  facts  or  the  law,  that  would  be  a 
proper  ground  for  affording  relief;  and  it  is  stated  in  a  report  of  the  case, 
(2  Jac.  &  Walk.  205,)  that  the  complainant  alleged,  in  his  bill,  that  he  had 
been  surprised  and  imposed  upon  by  his  brother  and  the  school  master.  In 
the  report  by  Moselcy,  Lord  Chancellor  King  is  made  to  say  that  the  maxim 
of  law,  ignorantia  juris  non  excusat,  was  in  regard  to  the  public  ;  that 
ignorance  cannot  be  pleaded  in  excuse  of  crimes,  but  did  not  hold  in  civil 
cases.  Mosley  is  not  a  book  of  very  high  authority.  Lord  Mansfield 
said  it  was  a  book  not  to  be  quoted.2  Bronson,  J.,  intimates  that  it  is 
much  more  probable  that  the  case  turned  on  the  ground  of  surprise  and 
imposition,  than  the  chancellor  made  use  of  the  language  imputed  to 
him.3 

The  cases  relied  on  to  sustain  the  doctrine  that  courts  will  relieve,  in 
cases  of  mistake  in  law,  will  be  found,  on  a  critical  examination,  to  fall 
short  of  that  position.  In  every  instance,  they  are  either  too  loosely 
reported  to  be  relied  on,  or  they  contain  some  fact  which  justified  the 
decision,  without  disturbing  the  principle,  that  every  man  in  the  full 
enjoyment  of  his  mental  faculties,  and  in  the  absence  of  all  undue  influ- 
ence, is  presumed  to  know  the  law  of  the  land.  They  are  most  of  them 
reviewed  by  Bronson,  J.,  in  Champlin  v.  Laytin,4  where  the  whole  subject 
has  been  fully  considered.  The  same  learned  judge  held  that  the  dis- 
tinction attempted  to  be  made  between  ignorance  and  mistake  of  the 

1  Lansdowne  v.  Lansdowne,  Mose.  364.        3  Champlin  v.  Laytin,  18  Wend.  414. 

2  5  Burr.   2629.     3   Anstr.   Eep.   861.        4  Id.  415. 
I  1. '.■,."-  Com.  493. 


Ch.  l.J  Mistake  of  Law.  61 

law,  and  that  in  the  latter  case,  though  not  in  the  former,  relief  might 
be  granted,  rested  on  no  solid  foundation. 

The  case  of  Hunt  v.  Rousmanier,'  has  been  relied  on  to  uphold  the 
doctrine  under  review.  A  brief  examination  of  that  case  will  not  be  out  of 
^lace  on  this  occasion.  The  bill,  in  that  case,  stated  that  the  plaintiff 
loaned  to  the  defendant's  intestate  two  sums  of  money,  1450  dollars  and 
700  dollars,  for  which  his  promissory  notes  were  given  ;  and  as  collateral 
security,  a  power  of  attorney  authorizing  the  plaintiff  to  execute  a  bill 
of  sale  of  tA\o  vessels,  the  Nereus  and  the  Industry,  to  himself  or  any 
other  person ;  and  in  case  of  loss,  to  collect  the  money  which  should  be 
ilue  on  a  policy,  by  which  said  vessels  and  their  freight  were  insured. 
The  instrument  contained  a  proviso,  that  the  power  was  given  as  a  col- 
lateral security  of  the  notes,  and  was  to  be  void  on  their  payment ;  on 
the  failure  of  which,  the  plaintiff  was  to  pay  the  amount  thereof,  and  all 
expenses,  out  of  the  proceeds  of  the  said  property,  and  to  return  the 
surplus  to  the  said  Rousmanier.  The  bill  then  charged  that  the  said 
Rousmanier  died  insolvent,  having  paid  only  200  dollars  on  said  notes. 
The  plaintiff  gave  notice  of  his  claim,  took  possession  of  the  vessels  on 
their  return  from  sea,  and  offered  the  intestate's  interest  in  them  for  sale. 
The  respondents  forbade  the  sale ;  and  the  bill  was  brought  to  compel 
them  to  join  in  it.  The  amended  bill  further  stated,  that  it  was  agreed 
between  the  parties,  that  Rousmanier  was  to  give  a  specific  security  on 
the  vessels,  and  offered  to  give  a  mortgage  ;  that  counsel  was  consulted  on 
the  subject,  who  advised,  that  a  power  of  attorney,  such  as  was  actually 
executed,  should  be  taken,  in  preference  to  a  mortgage ;  that  the  powers 
were  accordingly  executed,  with  the  full  belief  that  they  would,  and 
with  the  intention  that  they  should,  give  the  plaintiff  as  full  and  per- 
fect security  as  would  be  given  by  a  mortgage.  To  this  bill  there  was 
a  demurrer ;  which  was  sustained  by  the  circuit  court  of  Rhode  Island, 
and  the  bill  dismissed.2  From  this  decision  the  plaintiff  appealed  to  the 
supreme  court  of  the  United  States,  where  the  decree  of  the  circuit  court 
was  reversed,  the  proceedings  remitted,  and  leave  given  in  the  court 
below  to  withdraw  the  demurrer  and  answer  the  bill.3  Chief  J.  Marshall 
sustained  the  principle,  that  courts  of  equity  grant  relief  in  cases  of  fraud 
and  mistake ;  and  that,  in  general,  the  mistakes  against  which  a  court 
of  equity  relieves,  are  mistakes  of  fact.  He  threw  some  doubt  over  the 
tase  of  Lansdowne  v.  Lansdowne,  in  Moseley,  before  referred  to,  and  con- 


1  Hunt  v.  Rousmanier,  8  Wheaton,  174.        3  Hunt  v.  Rousmanier,  8  Wheaton,  1 74. 

2  Hunt  v.  Rousmanier's  Adm'r,  2  Afa- 
«on's  R.  244. 


<>2  Mistake  of  Law.  fCn.  1. 

eluded  by  saying,  "  We  find  no  case  which  we  think  precisely  in  point . 
and  are  unwilling,  when  the  effect  of  the  instrument  is  acknowledged,  to 
be  entirely  misunderstood  by  both  parties,  to  say  that  a  court  of  equity 
i«  incapable  of  affording  relief. 

The  case  being  remanded  to  the  circuit  court,  was  there  tried,  on  the 
answer  of  the  defendants ;  and  that  court  decreed,  that  the  plaintiff  was 
a  it  entitled  to  the  relief  sought,  and  dismissed  the  bill.1  On  appeal,  the 
case  came  again  before  the  supreme  court,  and  the  decree  of  the  circuit 
court  was  affirmed.2  Washington,  J„  in  pronouncing  the  opinion  of  the 
court,  says :  "  The  question  then  is,  ought  the  court  to  grant  the  relief 
which  is  asked  for,  upon  the  ground  of  mistake  arising  from  any  igno 
ranee  of  law  1  We  hold  the  general  rule  to  be,  that  a  mistake  of  this 
character  is  not  a  ground  for  reforming  a  deed  founded  on  such  mistake ; 
and  whatever  exceptions  there  may  be  to  this  rule,  they  are  not  only 
few  in  number,  but  they  will  be  found  to  have  something  very  peculiar 
in  their  character."  He  then  adverts  to  the  case  of  Lansdowne  v.  Lans- 
downe,  and  remarks  :  "Admitting,  for  the  present,  the  authority  of  this 
case,  it  is  most  apparent,  from  the  face  of  it,  that  the  decision  of  the 
court  might  well  be  supported,  upon  a  principle  not  involved  in  the  ques- 
tion we  are  examining."  It  cannot  be  denied,  that  some  of  the  positions 
of  Chief  Justice  Marshall,  when  the  case  was  first  before  the  court,  as 
reported  in  Wheaton,  are  greatly  shaken  by  the  learned  and  elaborate 
judgment  of  Mr.  Justice  Washington,  in  which  all  seemed  to  concur. 
The  case  itself  cannot  be  quoted  as  an  authority  for  relieving  against 
mistakes  of  law,  nor  for  the  existence  of  a  distinction  between  ignorance 
of  the  law,  and  mistake  of  the  law. 

The  doctrine  that  parol  evidence  is  inadmissible,  to  show  a  mistake  in 
law  a?  a  ground  for  reforming  a  written  instrument  founded  on  such  mis- 
take. Is  the  settled  doctrine  of  Connecticut.3  Civilians  are  divided  on 
the  Question  whether  money  paid  under  a  mistake  of  law,  is  liable  to 
repetition.  But  it  is  the  settled  doctrine  of  Westminster  hall,  that 
money  paid  with  a  full  knowledge  of  the  facts  cannot  be  recovered  back, 
on  the  ground  that  the  party  was  ignorant  of  the  law.4 

The  principles  of  the  common  law  have  been  followed  more  closely  in 
this  than  they  have  in  some  of  the  other  states ;  and  our  courts  have 
never  held  but  one  language  on  the  subject.     Chancellor  Kent,  in  an 

Hunt  v.  Rousmanier,  3  Mason  s  R.  294.  *  Bilbie  v.  Lumley,  2  East,  469.    Low- 

a  S.  0.    1   Peters,  1.     And  see  Bank  ry  v.  Bourclrier,  Douglas,  467,  471,  pei 

LT.  S.  v.  Daniel,  12  Peters,  32.  Buller,  J.    Stevens  v  Lynch,  12  East,  3a 

*  Wheaton  v.  Wheaton,  9  Conn.  96.  Brisbane  v.  Davies,  5  Taunt.  144. 


Ch.  1.]  Mistake  of  Law.  63 

early  case  nearly  forty  years  ago,1  said  it  was  a  settled  principle  of  law 
and  sound  policy,  that  a  person  cannot  be  permitted  to  disavow  or  avoid 
the  operation  of  an  agreement  entered  into  with  a  full  knowledge  of  the 
facts,  on  the  ground  of  ignorance  of  the  legal  consequences  which  flow 
<rom  those  facts.  He  added,  that  ignorance  of  the  law  was  a  very  dan- 
gerous plea,  whether  we  apply  it  to  the  rules  of  civil  conduct,  or  to  duties 
t/f  natural  and  moral  obligations.  And  he  denied  relief,  on  the  ground 
that  the  plaintiff  was  only  under  a  mistake  in  point  of  law,  which  mis- 
take was  not  produced  by  any  fraud  of  the  defendant.  In  a  later  case,2 
he  says  :  "Courts  do  not  undertake  to  relieve  parties  from  their  acts  and 
deeds  fairly  done  on  a  full  knowledge  of  facts,  though  under  a  mistake 
of  the  law  :  every  man  is  to  be  charged  at  his  peril  with  a  knowledge 
of  the  law.  There  is  no  other  principle  which  is  safe  and  practicable  in 
the  common  intercourse  of  mankind."  And,  in  a  subsequent  case,3  he 
asserts  the  same  doctrine.  And  the  supreme  court,  in  1824,4  held  that 
money  paid  under  a  mistake  of  law  could  not  be  recovered  back.  The 
learned  judge  who  delivered  the  opinion  of  the  court  said :  "  Although 
there  are  a  few  dicta  of  eminent  judges  to  the  contrary,  I  consider  the 
current  and  weight  of  authorities  as  clearly  establishing  the  position, 
that  where  money  is  paid  with  a  full  knowledge  of  all  the  facts  and  circum- 
stances upon  which  it  is  demanded,  or  with  the  means  of  such  knowl- 
edge, it  cannot  be  recovered  back,  upon  the  ground  that  the  party  sup- 
posed he  was  bound  in  law  to  pay  it,  when  in  truth  he  was  not.  He 
shall  not  be  permitted  to  allege  his  ignorance  of  law ;  and  it  shall  be 
considered  a  voluntary  payment."  The  general  doctrine  that  a  mistake 
in  law  could  not  be  made  a  ground  of  relief,  was  held  by  a  learned  judge 
in  a  recent  case.5 

After  a  learned  review  of  many  of  the  cases  on  the  subject,  an  emi- 
nent judge6  says :  "  It  is  impossible  to  foresee  all  the  consequences 
which  would  result,  from  allowing  men  to  avoid  their  acts  and  annul 
their  contracts,  on  the  plea  that  they  did  not  understand  the  law.  Who 
could  tell  what  titles  would  stand,  or  what  contracts  could  be  enforced,  if 
grantors  and  obligors  were  at  liberty  to  set  up  this  plea  1  Who  would 
venture  to  enter  into  stipulations  with  another,  if,  after  having  dealt 
fairly  in  relation  to  the  facts  of  the  case,  the  validity  of  the  contract 
?till  depended  on  the  legal  knowledge  of  the  opposite  party?     And  what 


1  Shotwell  v.  Murray,  1  J.  Ch.  R.  316.  5  Gilbert  v.  Gilbert,  9  Barb.  502.    Ar- 

-  Lyon  v.  Richman,  2  Jehu.  Ch.  R.  51.  thur  v.  Arthur,  10  id.  9-16,  per  Hand,  J. 

Storrs  v.  Baker,  6  John.  Ch.  R.  169.  6  Per  BronsoD,  J.,  Chainplin  v.Laytin, 

Clark  i.  Dutcher,  9  Coweu,  674,  681.  18  Wend.  417. 


6*4  Mistake  op  Law.  [Ch.  i 

possible  reason  can  there  be  for  indulging  the  plea  of  ignorance  in  civil 
cases,  when  it  is  wholly  disregarded  in  criminal  trials,  where  liberty  and 
life  are  at  stake  ?  Should  we  sanction  this  doctrine  under  the  notion  of 
administering  equity  in  a  hard  case,  it  could  not,  I  think,  fail  to  open  the 
flood-gates  of  litigation,  and  work  the  most  mischievous  consequences  in 
the  administration  of  justice." 

In  a  well  considered  case  in  Massachusetts  the  expression,  ignorance 
of  the  law,  was  held  to  have  reference  to  the  law  of  one's  own  country. 
A  man  is  not  presumed  to  know  the  law  of  another  state,  or  nation,  and 
therefore  ignorance  of  the  law  of  a  foreign  government  is  ignorance  of 
a  fact :  and  consequently  money  paid  by  mistake,  through  ignorance  of 
the  law  of  another  of  the  United  States,  may  be  recovered  back.1  Such 
ignorance,  on  the  same  principle,  is  in  a  proper  case,  relievable  in 
equity. 

On  the  question  whether  a  party  is  relievable  for  mere  error  in  law, 
the  late  Chancellor  Walworth  has  expressed  no  clear  or  decided  opinion.2 
The  weight  of  authority  is  greatly  adverse  to  such  power,  unless  surprise, 
fraud  or  some  other  circumstance  intervenes. 

One  of  the  most  common  cases  put  to  illustrate  the  doctrine  is,  where 
two  are  bound  by  a  bond,  and  the  obligee  releases  one,  supposing,  by 
mistake  of  law,  that  the  other  will  remain  bound.  In  such  a  case  the 
obligee  will  not  be  relieved,  in  equity,  upon  the  mere  ground  of  his  mis- 
take of  the  law.  If  there  has  been  no  fraud  or  imposition,  or  misplaced 
confidence  on  either  side,  there  is  no  reason  why  the  obligor,  to  whom  the 
release  was  given,  should  not  insist  on  his  legal  right ;  and  it  is  not  in- 
equitable for  the  other  obligor  to  insist  on  his  legal  rights.3  ^ 

There  is  a  class  of  cases  where  the  court  appears  to  have  been  gov- 
erned by  mixed  considerations,  and  to  have  granted  relief  apparently  for 
a  mistake  of  the  law.  But  when  the  cases  come  to  be  more  fully  and 
critically  examined,  it  will  be  seen  that  an  ignorance  of  facts,  as  well  as 
law,  or  misplaced  confidence  or  surprise,  has  occasioned  the  act  sought 
to  be  relieved.  Thus,  in  an  often  quoted  case,4  where  a  daughter  of  a  free 
man  of  London  accepted  of  a  legacy  of  £10,000  left  her  by  her  father,  who 
recommended  it  to  her  to  release  her  right  to  her  orphanage  part,  which 
she  did  release  accordingly.     Upon  a  bill  afterwards  filed  by  her  against 

1  Havens  v.  Foster,  9  Pick.  112.    The        2  Crozier  v.  Eice,  7  Paige,  137.     Hal 
whole  subject  of  mistake  and  ignorance    v.  Reed,  2  Barb.  Ch.  E.  500. 
of  the  law  is  elaborately  examined  by        3  1  Fonb.  Eq.  B.  1,  ch.  2,  §  7.     Har- 
aounsel  in  this  case.    And  see  Cockerell    man  v.  Carner,  4  Yin.  Ab.  387,  pi.  3.    1 
v.  Cholmeley,  1  Eus.  &  My.  413.  Mad.  Ch.  60. 

4  Pu^ey  v.  Disbouvre,  3  P.  "Wms.  316. 


Ch.  1.]  Mistake  of  Law.  65 

her  brother,  the  executor,  the  release  was  set  aside,  and  she  was 
restored  to  her  orphanage  part,  which  amounted  to  £40,000.  Lord 
Chancellor  Talbot,  in  deciding  the  case,  expressed  the  opinion  that  no 
fraud  was  committed  by  the  brother.  His  Lordship  said  :  "  It  appears 
the  defendant  did  inform  the  daughter,  that  she  was  bound  either  to 
waive  the  legacy  given  by  her  father,  or  to  release  her  right  by  the  cus- 
tom ;  and  so  far  she  might  know,  that  it  was  in  her  power  to  accept 
either  the  legacy,  or  orphanage  part ;  but  I  hardly  think  she  knew  she 
was  entitled  to  have  an  account  taken  of  the  personal  estate  of  her  father, 
and  first  to  know  what  her  orphanage  part  did  amount  to ;  and  that, 
when  she  should  be  fully  apprised  of  this,  then,  and  not  till  then,  she  was 
to  make  her  election,  which  very  much  alters  the  case  ;  for  probably  she 
would  not  have  elected  to  accept  her  legacy,  had  she  known,  or  been  in- 
formed, what  her  orphanage  part  amounted  unto  before  she  waived  it, 
and  accepted  the  legacy."  It  is  thus  obvious,  that  it  was  not  upon  the 
sole  ground  of  the  plaintiff's  ignorance  of  the  law  that  the  decree  pro- 
ceeded, but  her  ignorance  of  an  important  fact,  essential  to  be  known,  be- 
fore she  could  intelligently  execute  her  election.  Though  her  brother 
practiced  no  fraud  upon  her,  yet  she  relied  upon  him  for  information, 
which  was  not  communicated.  It  was  thus  a  case  in  which  misplaced 
confidence,  mingled  with  an  ignorance  of  both  law  and  fact.  The  case 
does  not  conflict  with  the  current  of  authority  on  this  subject. 

Many  of  the  cases  on  this  subject  arise  out  of  the  compromise  of 
family  controversies,  and  should  not  be  disturbed  by  the  courts  on  the 
mere  ground  that  either  of  the  parties  acted  in  ignorance  of  the  law,  or 
was  mistaken  in  its  effect.  But  if  a  party  obtaining  a  release  has  an  un- 
due advantage  over  the  other  party,  if  the  parties  did  not  stand  upon 
equal  ground,  if  the  releasor  was  led  by  his  necessities,  or  by  undue  in- 
fluence or  surprise,  as  well  as  ignorance  of  his  rights,  to  relinquish  his 
interest  in  che  estate  to  which  he  is  entitled  as  heir  or  devisee,  relief 
will  be  granted.  Thus,  in  a  recent  case,1  the  testator,  after  giving  some 
inconsiderable  legacies,  bequeathed  the  bulk  of  his  large  estate  to  his 
executors  "  in  trust  for  such  purposes  as  they  consider  promises  to  be 
most  beneficial  to  the  town  and  trade  of  Alexandria  ;  if  any  difficulty 
occurs  in  construction  as  to  any  of  my  bequests,  R.  J.  Taylor  is  specially 
charged  to  give  said  construction."  The  executors,  after  the  death  of  the 
testator,  but  without  any  actual  fraud,  obtained  from  the  nephew  and 
heir  at  law  of  the  testator  a  release  of  his  interest  in  the  estate,  and  as 

1  Wheeler  v.  Smith,  9  How.  55. 
Eq.  Jur.  9 


6fi  Mistake  of  Law.  fCli.  1. 

a  compromise  of  his  claim  to  the  same,  in  consideration  of  twenty-five 
thousand  dollars.  The  heir  filed  his  bill  to  set  aside  the  legacy  as  void, 
on  account  of  the  objects  being  too  indefinite  and  uncertain,  and  to  set 
aside  the  release  and  compromise  as  being  given  under  a  mistake  as  to 
the  validity  of  the  bequest,  and  for  other  grounds.  The  bill  was  filed  in 
the  circuit  court  of  the  District  of  Columbia,  and  detailed  the  circum- 
stances under  which  the  release  was  obtained.  The  defendants  demur- 
red to  the  bill.  The  circuit  court  sustained  the  demurrer  and  dismissed 
the  bill,  and  the  complainant  appealed  to  the  supreme  court.  On  the 
appeal,  the  court  held  the  residuary  bequest  void,  the  effect  of  which  de- 
cision was  to  devolve  the  estate  on  the  complainant  as  heir  at  law,  unless 
the  release  and  compromise  were  operative.  On  this  branch  of  the  case 
the  court  say,  "  The  complainant  had  been  prodigal  in  his  expenditures, 
and  notwithstanding  the  provisions  for  his  support,  which  had  been  made  for 
him  by  his  uncle,  he  was  without  means  and  embarrassed.  In  the  inter- 
view which  led  to  the  compromise,  he  expressed  the  opinion  that  the  be 
quest  was  void,  and  declared  that  he  should  try  its  validity  by  legal  pro- 
ceedings." Mr.  Taylor,  one  of  the  executors,  was  a  distinguished  lawyer, 
a  man  of  high  standing,  and  in  whom  the  complainant  reposed  the  great- 
est confidence  ;  he  represented  to  the  complainant  that  he  had  sundry 
written  opinions  of  counsel  in  favor  of  the  legal  validity  of  the  residuary 
devise,  which  he  offered  to  shew  to  him.  His  conversation  conveyed  to 
the  complaintant,  "  the  clear  and  distinct  impression  that  there  was  but 
one  opinion  among  the  lawyers  consulted,  and  that  they  wTere  unanimous 
in  favor  of  the  validity  of  the  devise."  The  complainant  asked  Mr.  Taylor 
to  state  his  opinion  on  the  subject.  He  observed  that  the  complainant 
should  not  have  asked  him,  but  his  opinion  was,  "  that  the  devise  in  ques- 
tion was  a  legal  and  valid  disposition  of  the  residue  of  the  estate."  At 
the  same  time  he  admitted  that,  in  Pennsylvania,  such  a  devise  would  not 
be  good ;  but  that  it  was  good  under  the  old  law  of  Virginia. 

The  complainant  alleged  that  he  had  no  settled  views  of  the  legal  ques 
tion,  and  being  disheartened  by  the  circumstances  under  which  he  was 
placed,  he  yielded  to  the  compromise.  He  had  but  little  time  for  reflec- 
tion, and  none  to  advise  with  counsel ;  and  at  last  he  -came  to  the  con- 
clusion to  consider  the  devise  valid,  and  take  what  he  could  for  a  release 

Under  these  circumstances,  the  complainant  agreed  to  the  compromise. 
It  stated  the  residuary  devise,  and  that  its  validity  had  been  contro- 
verted by  the  complainant.  That  the  executors,  taking  on  themselves 
the  burden  of  the  execution  of  said  will,  and  of  the  trusts  aforesaid,  and 
the  said  complainant,  to  avoid  the  expense  of  litigation,  and  finally  to 
settle  and  adjust  all  doubts  and  difficulties   which  lui^ht   arise  on  the 


Ch.  l.j  Mistake  of  Law.  67 

effect  of  said  will,  so  as  to  leave  the  executors  to  execute  the  same  with 
out  delay  or  impediment,  have  agreed  on  the  following  terms  of  compro- 
mise :  The  terms  are  then  set  out,  by  which,  among  other  things,  the 
complainant  released  to  the  executors  all  his  claims  in  law  and  equity  to 
the  estate,  real  and  personal,  devised  and  bequeathed,  or  intended  to  he 
devised  or  bequeathed,  by  the  said  testator  by  his  said  will,  &c,  &e 
The  learned  judge  then  proceeds :  "  The  complainant,  it  seems,  had 
studied  law,  but  it  is  manifest,  from  the  facts  before  us,  thai  he  was  but 
little  acquainted  with  business,  was  an  inefficient  and  dependant  man, 
easily  misled  by  those  for  whose  abilities  and  characters  he  entertained  a 
profound  respect.  From  the  high  character  of  the  executors,  no  one  can 
impute  to  them  any  fraudulent  intent  in  this  transaction.  Looking  to 
what  they  considered  to  be  the  object  of  the  testator,  they  felt  them- 
selves authorized,  if  not  bound,  to  effectuate  his  purposes  by  making  this 
compromise  with  his  heir  at  law.  They  had  no  personal  interest  beyond 
that  which  was  common  to  the  citizens  of  Alexandria.  And  we  admit 
that  they  may  have  acted  under  a  sense  of  duty  from  a  misconception  of 
their  power  under  the  will. 

"But  in  making  the  compromise,  the  parties  did  not  stand  on  equal 
ground.  The  necessities  and  character  of  the  complainant  were  well  known 
to  the  executors.  Having  the  confidence  expressed  in  the  validity  of  the 
devise,  they  could  hardly  have  felt  themselves  authorized  to  pay  to  the 
cunplainant  twenty-five  thousand  dollars  for  the  relinquishment  of  a  pre- 
t  tided  right.  Nor  could  they  have  deemed  it  necessary,  in  the  agreement 
ol"  compromise,  substantially  to  constitute  him  the  donor  of  the  munifi- 
c  mt  bequest  to  the  town  and  trade  of  Alexandria. 

"  We  are  to  judge  of  this  compromise  by  what  is  stated  in  the  bill,  the 
fucts  being  admitted  by  the  demurrer.  And  it  appears  to  us  that  the 
agreement,  under  the  circumstances,  is  void.  It  cannot  be  sustained  on 
principles  which  lie  at  the  foundation  of  a  valid  contract.  The  influ 
ences  operating  upon  the  mind  of  the  complainant  induced  him  to  sacrifice 
his  interests.  He  did  not  act  freely  and  with  a  proper  understanding  of 
his  rights." 

It  is  quite  clear  that  the  decision  of  this  case  rests  on  other  ground 
than  the  mistake  of  the  complainant  as  to  the  legal  validity  of  a  legacy. 
He  was  not  informed  of  the  value  of  the  estate  embraced  in  the  residuary 
bequest.  Here  was  an  ignorance  of  a  fact,  known  to  the  one  party  and 
not  to  the  other.  It  is  hardly  probable  that  he  would,  for  the  considera- 
tion of  $25,000,  have  released  his  claim  to  an  estate  worth  five  times 
that  amount,  had  he  possessed  the  same  knowledge  which  the  executors 
enjoyed.     Here  was  also  a  misplaced  confidence  in  the  executors. 


€8  Mistake  of  Law.  [Ch.  1 

A  distinction  was  suggested  by  Lord  Macclesfield,1  behveen  a  release, 
where  the  party  releasing  was  ignorant  of  his  right,  or,  if  his  right  was 
concealed  from  him  by  the  person  to  whom  the  release  is  made,  and  the 
release  of  a  party  having  right,  intimating  that  in  the  latter  case  the 
release  was  valid,  and  in  the  former  it  might  be  set  aside.  If,  indeed,  the 
releasee  be  guilty  of  fraud  in  obtaining  the  release,  it  is  quite  plain  equity 
will  relieve.  But  there  is  no  foundation  for  the  other  distinction.  If 
two  parties  are  contending  in  court,  and  one  releases  his  pretensions  to 
the  other,  there  can  be  no  color  to  set  aside  the  release,  because  the  man 
who  made  it  had  a  right ;  for  by  the  same  reason  there  can  be  no  such 
thing  as  compromising  a  suit,  nor  room  for  any  accommodation  ;  every 
release  supposes  the  party  making  it  to  have  a  right.  But  this  can  be 
no  reason  for  its  being  set  aside,  for  then  every  release  would  be  avoided.2 
An  agreement  upon  a  supposition  of  a  right,  though  it  may  afterwards 
come  out  that  the  right  was  on  the  other  side,  is  binding,  and  the  right 
shall  not  prevail  against  the  agreement  of  the  parties.3 

If  there  be  a  compromise  of  a  doubtful  right,  fairly  made  between  the 
parties,  its  validity  cannot  be  made  to  depend  upon  any  future  adjudi- 
cation of  the  same  question.  A  subsequent  decision  of  a  higher  court, 
in  a  different  case,  giving  a  different  exposition  of  a  point  of  law  from  the 
one  declared  and  known  when  a  settlement  between  parties  takes  place, 
cannot  have  a  retrospective  fffect  and  overturn  such  settlement.  The 
courts  do  not  undertake  to  relieve  parties  from  their  acts  and  deeds  fairly 
done  on  a  full  knowledge  of  facts,  though  under  a  mistake  of  the  law 
Every  man  is  to  be  charged  at  his  peril  with  a  knowledge  of  the  law. 
There  is  no  other  principle  av  Inch  is  safe  and  practicable  in  the  common 
intercourse  of  mankind.4 

In  some  of  the  states,  courts'  of  equity  have  not  followed  the  rule  of 
the  English  courts  and  of  this  6tate,  but  have  been  more  indulgent  in  grant- 
ing relief,  from  a  mistake  of  law  as  well  as  of  fact.  There  are  cases  in 
South  Carolina,  Kentucky  an  I  Maryland  to  this  effect.5  But  the  general 
rule  in  this  country  undoubte  Uy  is,  that  every  man  is  to  be  charged  at 
his  peril  with  a  knowledge  of  the  law ;  and  the  courts  cannot  undertake 

1  Cann  v.  Cann,  1  P.  Wms.  727.  374.     Fitzgerald   v.   Peck,  4  Litt.   125. 

8  Id.  Lamat  v.  Rowley,  6  Harr.  &  John.  500, 

'  Stapilton  v.  Stapilton,  1  Atk.  10.  and  see  cases  collected  in  C.  &  II.  Notes, 

4  Lyon   v.  Richards,   2  J.  Ch.  R.  60.  1483,   4.     Gilbert  v.    Gilbert,   9    Barb. 

Shotwell   v.  Murray,   1   J.  Ch.  R.  516.  534.     Arthur  v.  Arthur,  10  id.   9.     Ma- 

B  Lowndes  v.  Chisden,  2  M'Cord's  Ch.  thews  v.  Tsrwilliger,  3  id.  50.     Dupre 

R.    +<")5.     Hopkins'    Ex'r   v.   Mazyck,    1  v.  Thompson,  4  id.  279. 

Rills  Ch.  R.  251.  Drew  v.  Clerck,  Cook 


Ch.  l.J  Mistake  of  Fact.  69 

to  relieve  parties  from  their  acts  and  deeds,  fairly  done  on  a  full  knowl- 
edge of  facts,  though  under  a  mistake  of  the  law. 

It  remains  to  consider  how  far,  and  under  what  circumstances,  equity 
will  relieve  in  case  of  ignorance,  or  mistake  of  fact.  Although  there 
may  be  a  difference  between  ignorance  of  a  fact,  and  mistake  of  a  fact, 
when  closely  considered,  yet  they  are  generally  used  as  equivalent  ex- 
pressions in  legal  discussions.  In  general  it  may  be  said,  that  the  fact 
mistaken  must  be  material  to  the  contract,  or  other  matter  affected  by  it, 
and  the  party  asking  relief  must  make  his  complaint  with  reasonable  dili- 
gence. In  this,  as  in  other  matters,  the  maxim  applies  vigilantibus 
non  dormientibus  jura  snbveniunt.* 

Courts  of  equity  sometimes  give  relief  in  cases  of  mutual  mistakes,  unac- 
companied by  fraud,  when  the  property  which  one  pa*Jy  intended  to  sell,  and 
the  other  intended  to  buy,  did  not  in  fact  exist ;  or  where  the  subject  matter 
of  the  sale  and  purchase  is  so  materialy  variant  from  what  the  parties  sup- 
posed it  to  be,  that  the  substantial  object  of  the  sale  and  purchase  entirely 
fails.2  Where  land  is  sold  at  a  certain  price  by  the  acre,  or  foot,  and  it  turns 
out  that  by  the  mutual  mistake  of  the  parties  there  is  a  considerable  defi- 
ciency in  the  quantity,  courts  of  equity  have  so  far  interfered  in  some 
cases  as  to  relieve  the  purchaser  from  the  payment,  for  the  deficiency. 
But,  even  in  such  a  case,  a  slight  variation  in  quantity  will  not  afford  a 
ground  for  the  interference  of  a  court  of  equity  to  correct  the  mistake.3 

Where  the  consideration  of  a  covenant  to  pay  an  annuity,  was  the  con- 
veyance to  the  covenantor  of  a  tract  of  land  on  the  right  bank  of  the 
Ohio  river,  stated  to  embrace  a  coal  mine,  and  the  sole  inducement  to  the 
purchase  was  the  supposed  existence  of  the  coal  mine,  and  it  was  finally 
ascertained  that  no  coal  mine  was  embraced  within  the  bounds  of  the 
deed,  equity  enjoined  perpetually  a  prosecution  at  law,  to  recover  the 
annuity.4  But  the  court  will  not  interfere,  where  the  instrument  itself  13 
such  as  the  parties  designed  it  to  be.  If  the  parties  voluntarily  choose 
to  express  themselves  in  the  language  of  the  deed,  they  must  be  bound 
by  it.5     It  is  otherwise  upon  proof  of  fraud,  mistake  or  surprise.6 

But  if  one  party  thought  he  had  purchased  bona  fide,  and  the  other 
party  thought  he  had  not  sold,  that  is  a  ground  to  set  aside  the  contract, 

1  2  Inst.  690.  Broom's  Maxims,  692.  4  Dale  and  wife,  ex'rs  of  Fulton,  v. 

'  Per  Walworth,  Cb.,  Marvin  v.  Ben-  Roosevelt,  5  J.  Ch.  R.  174;  S.  C.  in  error, 

net,  8  Paige,  321 ;  S.  C.  in  error,  26  Wend.  2  Cowen,  129. 

169.  •  McEklery  v.  Shipley,  2  Maryl.  R.  2b. 

*  la.  •  id. 


70  Mistake  op  Fact.  [Ch.  1 

that  neither  party  may  be  damaged ;  because  it  is  impossible  to  say,  one 
shall  be  forced  to  give  that  price  for  part  only,  which  he  intended  to  give 
for  the  whole ;  or  that  the  other  shall  be  obliged  to  sell  the  whole,  for  what 
he  intended  to  be  the  price  of  part  only.  On  the  other  hand,  if  both 
understood  the  whole  was  to  be  conveyed,  it  must  be  conveyed.1  In  this 
case  there  had  been  an  innocent  mistake  of  the  parties,  as  to  the  extent 
of  the  thing  purchased. 

So  where  A.  purchased  an  estate  of  B.,  which  in  fact  was  the  estate 
j?  A.,  A.  was  allowed,  on  the  ground  of  mistake,  to  have  the  purchase 
money  refunded,  though  there  was  no  fraud  in  B.,  who  apprehended  he 
had  a  right  to  the  estate.2 

On  the  same  principle,  where  a  legatee  had  received  a  legacy  and  a 
year's  interest,  and  given  a  receipt  in  full  for  the  legacy  and  interest,  on 
shewing  that  the  legacy  was  payable  a  year  after  the  death  of  the  tes- 
tator, and  not  on  the  marriage  of  the  legatee,  which  happened  long  after- 
wards, and  that  it  was  by  mistake  the  whole  interest  was  discharged  when 
only  a  part  was  paid  ;  the  court  relieved  against  the  receipt,  and  directed 
the  balance  to  be  paid,  although  in  form  cut  off  by  the  discharge.3 

The  same  principle  is  illustrated  by  another  very  hard  case :  thus,  a 
mortgage  came  to  an  executor,  who  received  the  mortgage  money  and 
paid  it  over  to  his  testator's  creditors.  Afterwards,  it  appeared  that  the 
mortgage  had  been  satisfied  in  the  testator's  lifetime.  A  bill  was  filed 
to  be  relieved  for  this  overpayment,  and  relief  was  decreed,  though  the 
money  had  been  paid  by  the  executor  in  satisfaction  of  debts  of  the 
estate,  for  which  there  were  no  other  assets  to  pay.  And  the  executor 
was  driven  to  sue  the  creditors,  to  whom  he  had,  through  mistake,  paid.4 

To  entitle  a  party  to  relief  in  such  cases,  the  fact  must  not  only  be 
material,  but  must  be  such  that  he  could  not,  with  reasonable  diligence, 
have  obtained  knowledge  of  the  fact.  Where  there  is  neither  accident 
nor  mistake,  misrepresentation  nor  fraud,  equity  affords  no  relief  to  a 
r>arty,  on  the  ground  that  he  has  lost  his  remedy  at  law,  through  mere  ig- 
aorance  of  a  fact,  the  knowledge  of  which  might  have  been  obtained,  by 
due  diligence  and  inquiry.5     A  party  who  becomes  remediless  at  law  by 

1  Claverly  v.  Williams,  1  Ves.  jun.  210,  s  Earl  v.  Thornbery,  3  P.  Wms.  126. 
211.  *  Pooley  v.  Ray,  1  id.  354. 

2  Bingham  v.  Bingham,  1  Yes.  126.  l  Taylor  v.  Fleet,  4  Barb.  95.  Dnfret 
1  Mad.  Ch.  62 ;  and  see  Taylor  v.  Fleet,  v.  Thompson,  id.  298.  Perry  v.  Martin, 
1  Barb.  S.  C.  Pv.  471,  as  to  mutual  mis-  4  J.  Ch.  K.  566. 

take  of  facts  being  sufficient  to  avoid  a 
contract. 


Cb.  l.j  Mistake  of  Fact.  71 

negligence,  shall  not  be  relieved  in  equity.1      Vigilantibus  non  dormi 
entibns  jura  subveniunt.2 

The  circumstance,  that  a  material  fact  is  mistaken  or  unknown,  does 
not,  in  all  cases,  call  for  the  interposition  of  a  court  of  equity.     If  the 
fact  be  known  to  one  party,  and  unknown  to  the  other,  it  may  be  one  item 
in  the  proof  to  establish  a  fraudulent  concealment,  misplaced  confidence 
or  surprise.     But  then,  the  relief,  if  granted,  is  so  granted  on  the  ground 
of  fraud  or  misplaced  confidence,  rather  than  on  the  ignorance  of  the  one 
party,  and  knowledge  of  the  other.     If  A.,  knowing  that  there  is  a  mine  j 
or  a  valuable  quarry  of  marble  on  the  land  of  B.,  of  which  he  knows  B. 
is  ignorant,  should  buy  the  land  of  B.  without  disclosing  the  fact,  for  a 
price,  in  which  the  mine  or  quarry  is  not  taken  into  consideration,  B. 
would  not  be  entitled  to  relief  against  the  contract.     The  reason  is,  A.,  1 
the  purchaser,  was  under  no  obligation,  from  the  nature  of  the  contract  / 
to  make  the  disclosure. 

If  the  fact  be  unknown  to  both  parties,  there  is  no  principle  on  which 
equity  can  interpose,  though  it  happen  that  the  estate  be  more  valuable 
than  either  party  supposed.  If  both  are  equally  innocent,  each  is  en- 
titled to  whatever  benefit  may  result  to  him  from  the  purchase.  But  the 
law  does  not  go  to  the  romantic  length,  of  requiring  that  both  parties 
should  be  upon  the  same  level,  as  to  information  or  knowledge.  It  re- 
quires each  party  to  be  vigilant,  and  to  abstain  from  any  fact  tending  to 
mislead  or  deceive.  If  the  parties  stand  on  a  footing  of  equality,  and  no 
fraud  is  committed  by  either,  both  must  abide  by  the  contract,  and  each 
is  entitled  to  the  benefit  of  his  own  sagacity.  But  the  law  exacts  the 
utmost  good  faith,  especially  where  the  rights  of  sureties  are  concerned.3 

If  the  means  of  information  are  open  to  both  parties,  and  the  vendee, 
before  the  purchase,  acquires  information  not  known  to  the  vendor,  ma- 
terially enhancing  the  price  of  the  article,  and  of  which  he  knows  the 
vendee  is  ignorant,  equity  cannot  relieve.  The  reason  is,  the  vendee 
was  not  bound  to  communicate  the  information  he  possessed.  He  must 
take  care  not  to  say  any  thing,  tending  to  impose  upon  the  vendor.  I; 
would  be  difficult  to  circumscribe  the  contrary  doctrine,  within  propei 
limits,  when  the  means  of  intelligence  are  equally  accessible  to  both 
parties.4  Thus,  where  the  vendee,  at  New  Orleans,  during  the  war  with 
Great  Britain,  in  1815,  had  received  intelligence  of  the  peace  at  the  time 
he  entered  into  the  contract,  of  which  fact  the  vendor  was  ignorant,  pur- 

1  Perry  v.  Martin,  4  J.  Ch.  E.  566,  per    Etting  v.  Bank  U.  S.  11  Wheat.  59    and 
Kent,  Ch.    1  Fonb.  Tr.  book  1,  ch.  3,  §  3.    cases  there  cited. 

2  Br.  Maxims,  692.  4  Laidlow  v.  Organ,  2  TVheaton,  178- 
*  Pidcock  v.  Bishop,  3  B  &  Cress.  605.     195. 


72  Mistake  of  Fact.  [Cb.  1 

chased  of  the  latter  111  hogsheads  of  tobacco,  for  a  certain  price,  far 
oelow  its  value  in  a  state  of  peace,  it  was  held  that  the  purchase  could 
not  be  avoided,  notwithstanding  the  ignorance  of  the  vendor  of  that 
material  fact.1 

A  man  of  a  nice  sense  of  justice  may  feel  that,  in  foro  conscienticB- 
the  vendee  should  impart  to  the  vendor  intelligence  which  so  essentially 
affects  the  market  value  of  the  article.  The  establishment  of  such  a 
rale  would  require  the  vendor  to  disclose  every  thing  in  his  power  which 
might  lessen  its  price.  Thus,  the  two  parties,  instead  of  dealing  with 
each  other,  as  men  usually  do,  at  arm's  length,  each  turning  his  own 
knowledge  and  sagacity  to  the  best  account,  would  be  urging  arguments 
to  dissuade  the  other  from  entering  into  the  contract  which  he  was  pro- 
posing to  make.  The  common  law  has  never  gone  to  that  visionary 
extent.  Where  the  facts  are  equally  unknown  to  both  parties  ;  or  where 
each  has  equal  and  sufficient  means  of  information ;  or  where  the  fact  is 
doubtful,  or  uncertain  in  its  nature,  if  the  parties  act  in  other  respects, 
with  good  faith,  equity  will  not  interfere. 

Nor  will  equity  interfere  to  set  aside  a  contract  made  in  good  faith, 
on  the  ground  of  a  mistake  in  judgment  as  to  the  value  of  the  article. - 
Nor  will  it  interfere  where  there  was  no  fraud  or  misrepresentation,  or 
surprise,  nor  mistake,  except  mistaken  calculations  and  an  unprofitable 
bargain.3 

In  Massachusetts  it  has  been  held  that  the  supreme  judicial  court  has 
no  jurisdiction  in  equity,  in  cases  of  mere  mistake.4 

Where  the  number  of  acres  conveyed  is  different  from  the  original 
agreement  for  conveyances,  equity  will  relieve  on  the  ground  of  mistake  ; 
and  if  the  variance  be  very  great,  the  words,  "  more  or  less,"  in  the  deed, 
will  not  prevent  the  court  from  relieving.5 

The  cases  of  most  frequent  occurrence,  where  equity  is  invoked  to 
correct  mistakes  of  fact,  arise  under  written  contracts,  either  executed  or 
executory.  Sometimes  relief  is  prayed  because  a  substantial  fact  of  the 
contract  made  has  been  omitted  by  accident  or  mistake,  when  it  came  to 
be  reduced  to  writing.  The  case  of  Wood  v.  Hubbell,  recently  decided  in 
the  court  of  appeals  of  New-York,  and  discussed  under  the  head  of  ac- 
cident, was  of  this  character.6     The  ommission,  by  the  scrivener,  of  that 


1  Laidlow  v.   OrgaD,  2  Wheat.   178-  B  Young  v.  Craig,  2  Bibb,  270.    Smith 

*  95,  and  note.  Pothier  DeVente,  No.  233.  v.  Smith,  4  id.  81.    Marvin  v.  Bennett, 

1  Hunter  v.  Goudy,  1  Hammond,  450.  8  Paige,  312  ;  S.  C,  2G  Wend.  109. 

*  negus  v.  Tingley,  11  Conn.  134.  °  Ante,  "Accident."  June  T.,  court  of 

4  Gould  v,  Gould,  5  Met.  274,  appeals,  1853. 


Ch.  I.J  Mistake  of  Fact.  73 

part  of  the  contract  which  terminated  the  lease  and  the  covenants  on  the 
destruction  of  the  demised  premises  by  fire,  might  appropriately  be 
referred  either  to  the  head  of  Accident  or  Mistake.  Sometimes  relief  is 
sought  because  there  is  a  mistake  as  to  the  subject  matter  of  the  pur- 
chase.1 Thus,  -where  a  trustee  for  an  infant  agreed  to  sell  200  acres  of 
land,  part  of  a  lot  of  250  acres,  and  executed  a  deed  to  the  purchaser, 
describing  the  premises  by  metes  and  bounds,  "  containing  two  hundred 
acres  more  or  less ;"  and  the  bounds  included  the  whole  lot  of  250 
acres  ;  on  a  bill  filed,  after  the  death  of  the  trustee,  by  the  cestui  que 
trust,  for  relief  against  the  mistake,  the  vendee  was  decreed  to  reconvey 
the  fifty  acres.2  On  the  same  principle  it  is  obvious  that  relief  may  be 
granted  in  any  case  where  the  agreement  is,  by  accident  or  mistake,  ma- 
terially variant  from  what  the  parties  intended. 

It  is  a  general  principle  of  the  common  law  that  parol  evidence  is  not 
admissible,  to  contradict  or  vary  or  add  to  the  terms  of  a  deed,  or  other 
written  contract.3  "It  would  be  inconvenient,"  says  Lord  Coke,  "that 
matters  in  writing,  made  by  advice  and  on  consideration,  and  which  finally 
import  the  certain  truth  of  the  agreement  between  the  parties,  should  be 
controlled  by  an  averment  of  parties,  to  be  proved  by  the  uncertain  testi- 
mony of  slippery  memory ;  and  it  would  be  dangerous  to  purchasers  and 
all  others,  in  such  cases,  if  such  nude  averments  against  matter  in  writing 
should  be  admitted."4  This  principle  is  the  general  rule,  and  is  founded 
ii.  wisdom  and  policy.  But  if  the  rule  were  inflexible,  and  in  no  case 
to  be  departed  from,  it  would  abrogate  an  essential  part  of  equity  juris- 
diction. Fraud,  accident  and  mistake  are  undisputed  subjects  of  relief 
in  equity.  How  can  fraud,  accident  or  mistake  in  written  contracts,  be 
made  to  appear  but  by  parol  proof?  If  the  fact  be  denied  by  a  party 
gaining  a  benefit  thereby,  the  victim  of  fraud,  or  accident,  or  mistake, 
would  be  without  redress.  The  granting  of  relief  in  cases  of  this  kind, 
rests  upon  the  principle  that  parol  evidence,  to  explain,  contradict  or 
supply  a  written  instrument,  in  a  proceeding  in  equity  to  reform  the 
instrument,  is  an  exception  to  the  general  rule.  And  although  it  has 
often  been  strenuously  resisted  by  counsel,  yet  the  exception  is  as  firmlv 
established  as  the  rule  itself.5  Lord  Hardwicke  said  the  court  had  juris- 
diction to  relieve,  in  respect  of  a  plain  mistake  in  contracts  in  writing,  as 


1  Calverley  v.  Williams,  1  Vcs.  jr.  210.  collected  in  C.  &  H.  Notes  to  Phil.  Ev. 

■  Gillispie  v.  Moon,  2  John.  Ch.  R.  585.  p.  1428. 

*  1  Phil.  Ev.  548.  8  Bull  v.  Stone,  1   Sim.  &  Stu.  210, 

4  See  the  cases  at  law  on  this  subject  219,  220. 

F.o    Jur.  10 


74  Mistake  of  Fact.  fCh.  1. 

well  as  against  frauds  in  contracts.1  In  another  case  the  sune  eminent 
chancellor  corrected  a  bond  which  was  by  mistake  made  joint,  instead  of 
joint  and  several.2  And  in  another  case,  though  he  dismissed  the  bill 
for  want  of  proof,  he  said  that  mistakes  and  misapprehensions  in  the 
draAver  of  a  deed,  contrary  to  the  design  of  the  parties,  is  as  much  a 
head  of  relief  as  fraud  and  imposition.3  And  in  another  case  his  lordship 
said,  "  how  can  a  mistake  in  an  agreement  be  proved  but  by  parol  evi- 
dence ?  It  (the  deposition)  is  not  read  to  contradict  the  face  of  the 
instrument,  but  to  prove  a  mistake  therein."4  Lord  Ch.  King  allowed  a 
mistake  in  a  marriage  settlement  to  be  corrected.5  Lord  Loughborough 
corrected  a  bond,  making  it  several  instead  of  joint.6  And  Lord  Thurlow, 
in  a  much  agitated  case,  laid  down  the  rule  with  great  latitude,  that  if  a 
mistake  appears,  it  is  as  much  to  be  rectified  as  a  fraud.7  And  in  another 
case,  he  held  that  parol  proof  was  not  incompetent  to  prove  that  words 
taken  down  in  writing  were,  by  mistake,  contrary  to  the  current  testi- 
mony of  all  parties.  And  Lord  Eldon  in  a  later  case  said,  that  it  would 
be  very  singular,  if  the  jurisdiction  of  the  court  should  not  be  capable 
of  being  applied  to  cases  of  mistake  and  surprise,  as  well  as  of  fraud.3 
He  owned  that  those  who  undertook  to  rectify  an  agreement,  by  showing 
a  mistake,  undertook  a  task  of  great  difficulty,  but  he  could  not  say  the 
evidence  was  incompetent,  though  it  was  not  possible  to  reconcile  all  the 
cases  on  the  question. 

On  the  same  principle,  defects  in  mortgages,  contrary  to  the  intention 
of  the  parties,  have  also  been  made  good  against  subsequent  judgment 
creditors,  who  came  in  under  the  party  who  was  bound  in  conscience  to 
correct  the  mistake.9  On  the  like  principle,  a  resulting  trust  may  be 
established  by  parol  proof,  in  opposition  to  the  deed,  and  in  opposition  to 
the  answer  denying  the  trust.10  A  deed,  absolute  on  its  face,  may  be 
shown  by  parol  to  be  intended  as  a  mortgage.11  Such  evidence  was  at 
one  time  held  admissible,  in  this  state,  in  a  court  of  law,  to  show  that  a 
deed  absolute  on  its  face  was  intended  as  a  mortgage.12  But  that  doctrine 


1  Henkle  v.  Royal  Exchange  Assurance  '  Taylor  v.  Wheeler,  2  Vern.  564.  Finch 
Co.,  1  Ves.  317.  v.  Earl  of  Winchelsea,  1  P.  Wms.  277. 

2  Simpson  v.  Vaughan,  2  Atk.  31.  10  Boyd  v.  M'Lean,  1  John.  Ch.  R.  582. 

3  Langley  v.  Brown,  2  Atk.  203.  Jameson  v.  Graves,  2  BlacKf.  440. 

4  Baker  v.  Paine,  1  Ves.  456.  "Washburn  v.  Merrills,  1  Day's  Casea 

6  Randall  v.  Randall,  2  P.  Wms.  465.  in  Error,  139. 

8  Burn  v.  Burn,  3  Ves.  jr.  473.  12  Roach  v.  Casine,  9  Wend.  227.   Wal- 

7  Taylor  v.  Riuld,  cited  5  Ves.  595.  ton  v.  Cronly,  14  id.  63.     Swart  v.  Ser- 
•  Marquis  of  Townsliend  v.  Stangroon,  vin,  21  id.  36.    Webb  v.  Rice,  1  Hill,  606. 

%  Ves.  328. 


Ch.  l.J  Mistake  of  Fact.  75 

lias  been  since  exploded,  and  such  evidence  is  admissible  only  in  a  direct 
proceeding  to  reform  the  instrument.1 

The  rule  that  parol  evidence  may  be  received  in  opposition  to  a  written 
contract,  in  an  action  brought  to  reform  it,  on  the  ground  of  mistake,  or 
in  a  case  where  it  is  set  up  as  matter  of  defense,  has  often  been  applied  in 
this  state.  Chancellor  Kent  uniformerly  held,  that  equity  relieves  in 
cases  of  mistake  as  "well  as  against  fraud,  in  a  deed  or  contract  in  "writ- 
ing ;  and  that  parol  evidence  was  admissible  to  prove  the  mistake,  though 
it  was  denied  in  the  answer ;  and  this,  either  when  the  plaintiff  seeks  re- 
lief, affirmatively,  on  the  ground  of  the  mistake,  or  when  the  defendant 
sets  it  up  as  a  defense  to  rebut  an  equity.2  But  it  is  properly  added 
that,  to  shew  a  mistake  in  a  written  instrument,  the  evidence  must  be 
clear  and  strong,  so  as  to  establish  the  mistake  to  the  entire  satisfaction 
of  the  court.3 

The  principle,  that  parol  evidence  is  admissible  to  contradict  a  deed  or 
other  instrument  in  cases  of  fraud,  accident  or  mistake,  was  recognized 
by  Ch.  Sandford,4  but  the  evidence  was  excluded,  in  the  case  before  him, 
because  neither  fraud,  accident  or  mistake  was  alleged.  The  case  was 
therefore  not  brought  within  the  exception  to  the  general  rule.  Chan- 
cellor Walworth  recognized  the  same  doctrine,  saying  that  the  rule  is, 
that  the  written  agreement  itself  is  the  best  evidence  of  what  the  parties 
intended  should  be  the  final  and  binding  contract  between  them,  when 
nothing  has  been  left  out  of  the  written  contract  by  fraud  or  mistake, 
which  the  parties  supposed  was  inserted  therein  when  the  agreement  was 
executed  by  them.5  The  doctrine  is  thus  recognized,  that  the  allegation 
of  fraud  or  mistake  will  let  in  evidence  to  shew  the  truth  against  the 
language  of  the  instrument. 

It  does  not  make  any  difference,  with  respect  to  the  jurisdiction  of  the 
court  to  relieve  in  cases  of  accident  or  mistake,  whether  the  agreement 
arose  under  the  statute  of  frauds,  or  the  common  law.  In  both  cases  the 
general  rule  is,  that  the  written  instrument  furnishes  better  evidence  of 
the  deliberate  and  final  intention  of  the  parties,  than  any  parol  proof  can 
supply.  And  the  exceptions  apply  as  well  to  one  class  of  agreements  as 
the  other.     And  equity  has  afforded  relief  or  withheld  it,  according  to 


1  Webb  v.  Rice,  6  Hill,  219.  607.    Bottsford  v.  Burr,  2  J.  Ch.  R.  413. 

'  Gillespie  v.  Moon,  2  J.  Ch.R.  51,  585.  Keissenbrack  v.  Livingston,  4  J.  Ch.  R. 

Id.    Lyman  v.  United  States  Ins.  Co.  148.     Roosevelt  v.  Dale,  2  Cowen,  129. 

2  J.  Ch.  R.  630.  1  Fonb.  Eq.  book  1,  ch.  Leavitt  v.  Palmer,  3  Comst.  19. 

2,  §  8.     Moses  v.  Murgatroyd,  1  J.   Ch.  *  Meads  v.  Lansing,  1  Hopk.  124. 

119,  128.     Wiser  v.  Bachley,  1  J.  Ch.  R.  6  Jarvis  v.  Palmer,  11  Paige,  658. 


7ii  Mistake  of  Fact  [Ch.  1. 

circumstances,  in  cases  of  policies  of  insurance,  charter  parties,  bonds 
and  other  commercial  paper.1 

A  distinction  has  sometimes  been  taken  between  cases  where  the  plain- 
tiff seeks  to  reform  a  contract,  and  then  compel  its  execution  specifically 
as  reformed,  and  cases  in  which  the  defendant  sets  up  the  mistake  as 
matter  of  defense,  against  a  claim  for  the  specific  execution  of  the  agree- 
ment. In  the  former  case,  relief  has  been  denied  in  England,  though 
granted  in  the  latter ;  and  the  distinction  has  been  sustained  by  respect- 
able authority  in  this  country.2  But  this  distinction  has  not  been  ap- 
proved or  followed  in  this  state,  but  has  been  expressly  overruled  by 
Chancellor  Kent.3  In  one  of  the  cases,  the  learned  chancellor  observes, 
that  he  is  not  sufficiently  instructed,  at  present,  to  admit  the  soundness 
of  the  distinction  which  holds  parol  evidence  admissible  to  correct  a  writ- 
ing as  against  but  not  in  favor  of  a  plaintiff  seeking  specific  performance 
of  an  agreement.  Lord  Hardwicke  does  not  seem  to  have  been  aware  of 
such  a  distinction  in  the  two  cases  to  which  Sir  William  Grant  refers,  in 
Wollam  v.  Hearne.  Lord  Thurlow  rejected  parol  proof  in  the  case  of 
Irnham  v.  Child,  (1  Bro.  92,)  when  offered  by  a  plaintiff  seeking  perform- 
ance of  an  agreement,  and  at  the  same  time  seeking  to  vary  it  by  parol 
proof;  but  he  went  upon  general  grounds,  applicable  to  such  proof,  as 
coming  from  either  party.  "  And  why,"  says  the  chancellor,  "  should  not 
the  party  aggrieved,  by  a  mistake  in  the  agreement,  have  relief  as  well 
when  he  is  plaintiff  as  when  he  is  defendant  ?  It  cannot  make  any  dif- 
ference in  the  reasonableness  and  justice  of  the  remedy,  whether  the  mis- 
take was  to  the  prejudice  of  the  one  party  or  the  other.  If  the  court  has 
a  competent  jurisdiction  to  correct  such  mistakes,  (and  that  is  a  point 
understood  and  settled,)  the  agreement,  when  corrected,  and  made  to 
speak  the  real  sense  of  the  parties,  ought  to  be  enforced,  as  well  as  any 
other  agreement  perfect  in  the  first  instance.  It  ought  to  have  the  same 
efficacy,  and  be  entitled  to  the  same  protection,  when  made  accurate 
ander  the  decree  of  the  court,  as  when  made  accurate  by  the  act  of  the 
parties.     The  one  case  illustrates   the  other.     Res  accendent  lumina 


1  Getman's  Ex'rs  v.  Beardsley,  2  J.  Ch.  United  Ins.  Co.  2  J.  Ch.  K.  630.    Graves 

R.  274.     Edwin  v.  East  India  Co.  2  Vern.  v.  The  Boston  Ins.  Co.  2  Crauch,  413. 

210.     Meach  v.  Lansing,  Hopkins,  124.  2  Clinman  v.  Cook,  1  Scho.  &  Lef.  22. 

Simpson  v.  Vaughan,  2  Atk.  31.    Dwight  Wollam    v.  Hearne,  7  Ves.  211,  by  Sir 

v.  Pomroy,  17  Mass.  303.     Underbill  v.  William  Grant,  M.  R.     Osborn  v.  Phelps, 

Harwood,  10  Ves.  225,  226.    Edwards  v.  19  Conn.  03. 

Child,    2    Vern.    72Y.    Lynan    v.   The  3  Gillespie  v.  Moon,  2  J.  Ch.  R.  585. 

Keissenbrack  v.  Livingston,  4  id.  144. 


Ch.  l.J  Mistake  op  Fact.  77 

rebus.''1  This  reasoning  seems  to  have  met  the  approbation  of  Mr.  Jus- 
tice Story.1  In  a  note  the  learned  justice  adds,  that  if  the  doctrine  be 
founded  upon  the  impropriety  of  admitting  parol  evidence  to  contradict  a 
written  agreement,  that  rule  is  no  more  broken  in  upon  by  the  admission 
of  it  for  the  plaintiff,  than  it  is  by  the  admission  of  it  for  the  defendant. 
If  the  doctrine  had  been  confined  to  cases  arising  under  the  statute  of 
frauds,  if  not  more  intelligible,  it  would,  at  least,  have  been  less  incon- 
venient in  practice.  But  it  does  not  appear  to  have  been  thus  restricted 
although  the  cases  in  which  it  has  been  principally  relied  on  have  been 
of  that  description.  It  will  often  be  quite  as  unconscientious  for  a  defend- 
ant to  shelter  himself  under  a  defense  of  this  sort,  against  a  plaintiff  seek- 
ing the  specific  performance  of  a  contract,  and  the  correction  of  a  mistake, 
as  it  will  to  enforce  a  contract  against  a  defendant,  which  embodies  a 
mistake  to  his  prejudice.2 

On  a  bill  to  redeem  a  mortgage,  parol  evidence  is  admissible  to  show  / 
that  a  conveyance,  absolute  in  terms,  was  intended  as  a  mortgage.  Oral 
evidence  is  admitted  or  rejected  in  such  cases,  not  by  the  mere  force  of 
any  statute,  but  upon  the  principle  of  equity  jurisprudence.3  These 
principles  are,  that  equity  will  relieve  in  cases  of  fraud,  accident  or  mis- 
take— whether  a  deed  intended  as  a  security  is  made  absolute  in  terms, 
is  generally  the  result  of  accident  or  mistake ;  or  of  a  fraudulent  design 
on  the  part  of  the  party  taking  the  security.  Where  the  difference  be- 
tween the  deed  as  expressed,  and  the  deed  as  intended,  may  have  arisen 
from  mistake,  or  ignorance,  or  accident,  it  becomes  necessary  to  let  in 
parol  proof  to  discover  and  carry  into  effect  the  real  intention  of  the 
parties  in  creating  the  security.4 

In  regard  to  mistakes  made  by  arbitrators,  it  was  said  by  Lord  Cow- 
per  in  one  case,  that  if  it  appears  that  the  arbitrators  went  upon  a  plain 
mistake,  either  as  to  the  law  or  the  fact,  and  the  error  appears  in  the  bod' 
of  the  award,  it  is  sufficient  to  set  it  aside.5  Lord  Hardwicke  approved  of 
this  decision,  but  observed  that  if  it  had  been  a  doubtful  point  of  law 
the  arbitrators'  award  might  have  stood.6  But  on  a  general  reference 
of  all  matters  in  dispute,  though  the  arbitrator  decides  wrong,  on  a  ques 
tion  of  law,  equity  will  not  interpose.7     And  this  doctrine  was  repeated 

1  1  Eq.  Juris.  §  161,  and  notes.  caster  v.  Burkhart,  2  Bibb,  28.  Blanehard 

*  Note  to  Story's  Eq.  Juris.  §  161.  v.  Keaton,  4  id.  451. 

*  Russell  v.  Southard,  12  How.  139, 147.        4  Moses  v.  Murgatroyd,  1  J.  Ch.  R.  127 
Slee    v.   Manhattan    Co.,    1    Paige,    48.  Mark  v.  Pell,  id.  595. 

Randall  v.  Philips,  3  Mason,  378.  Dicken-        6  Corneforth  v.  Geer,  2  Vern.  705. 
too  v.  Dickenson,  2  Murphy,  279.     Lan-        •  Ridout  v.  Paine,  3  Atk.  494. 

Ching  v.  Ching,  6  Yes.  282. 


78  Mistake  of  Fact.  [Ch.  1. 

by  Lord  Eldon  in  a  subsequent  case.1  This  subject  was  brought  in  dis- 
cussion before  Chancellor  Kent,  in  an  early  case,2  when  a  reference  was 
made  by  consent,  to  one  merchant  and  two  gentlemen  of  the  bar,  with 
directions  to  state  an  account,  and  to  decide  on  all  questions  in  dispute 
between  the  parties,  "  as  well  matters  of  law  as  of  fact."  In  remarking 
upon  this  the  chancellor  says,  "  After  the  parties  have  chosen  to  submit  a 
point  of  law  to  gentlemen  of  the  profession,  it  may  be  doubted  whether 
the  court  ought  to  permit  the  discussion  to  be  renewed  here,  without 
showing  a  case  of  gross  and  palpable  mistake."  Courts  of  law  are  in- 
clined to  hold  the  decision  of  arbitrators  conclusive  upon  the  parties,  and 
not  permit  their  award  to  be  questioned  by  evidence  tending  to  show 
that  it  was  erroneous.3 

This  subject  is  of  less  importance  in  this  state  since  the  code  has  pro- 
vided for  referring  all  the  issues  in  a  cause,  whether  of  fact  or  law,  to 
referees,  and  has  prescribed  a  convenient  and  efficient  mode  of  reviewing 
the  decision  of  the  referees,  both  upon  the  facts  and  the  law.4 

Where  the  legal  rights  of  parties  have  been  changed  by  mistake,  equity 
restores  them  to  their  former  condition,  where  it  can  be  done  without  in- 
terfering with  any  new  rights,  acquired  on  the  faith  and  strength  of  the 
altered  condition  of  the  legal  rights  and  without  doing  injustice  to  other 
parties.  Thus,  where  a  mortgage  to  the  plaintiff  had  been  given  by  an 
intestate,  and  after  his  death  it  was  cancelled  and  a  new  mortgage  taken 
to  the  heir,  on  the  same  premises  in  its  stead,  the  court  set  up  the  old 
mortgage,  and  gave  it  priority  as  against  the  creditors  at  large  of  the 
deceased,  upon  the  ground  that  the  first  mortgage  had  been  canceled 
under  a  mistake  of  fact  in  regard  to  the  existence  of  debts  beyond  the 
amount  of  assets ;  and  that  the  creditors  had  not,  in  any  way,  been  pre- 
judiced by  the  cancellation.5  The  same  doctrine  was  recoganized  in  a 
later  case,  the  difference  between  them  being,  that  in  one  the  mistake 
was  inferred,  and  the  other  proved*  Relief,  in  cases  where  instruments 
in  writing  had  been  given  up  and  cancelled  by  mistake,  has  repeatedly 
been  granted  by  the  English  court  of  chancery.7 

In  like  manner,  where  a  regular  decree  was  obtained  by  default,  equity 
opens  the  same,  even  after  enrollment,  for  the  purpose  of  enabling  the 
the  defendant  to  defend  on  the  merits,  when  he  was  deprived  of  such 


1  Young  v.  Walter,  9  Ves.  364.  5  Hyde  v.  Tanner,  1  Barb.  S.  0.  R.  75. 

9  Roosevelt  v.   Tbunnan,  1  J.  Ch.  R.  6  Banner  v.  Cormaek,  id.  392. 

226.  7  East  India  Co.  v.  ISTeave,  5  Ves.  17a 

3  Robertson  v.  McNiel,  12  Wend.  578.  Same  v.  Donald,  9  id.  275. 
*  Code,  §  270  et  seq. 


Oh.  l.J  Mistake  of  Fact.  79 

defense  by  accident  or  mistake.  And  it  was  held  that  such  decree 
might  be  opened,  after  a  sale  had  been  made  by  a  master,  under  the 
decree,  the  complainant  himself  having  been  the  purchaser  of  the  prem- 
ises, and  not  having  parted  -with  his  interest  therein  to  a  bona  fide  pur* 
chaser  or  mortgagee. > 

Nor  does  it  make  any  difference,  in  reforming  the  errors  of  written 
instruments,  occasioned  by  accident  or  mistake,  that  the  instrument  was 
drawn  by  the  party  who  seeks  such  relief.  If  the  true  agreement  and 
the  consequent  mistake  in  the  written  instrument  be  established  by  the 
evidence,  can  a  court  of  equity,  asks  Sir  John  Leach,  V.  C,  refuse  relief, 
because  it  appears  that  the  party  seeking  relief,  himself,  drew  the  in- 
strument, unless  it  be  a  principle  in  a  court  of  equity  not  to  relieve  a 
party  against  his  own  mistakes  ?  There  is  no  such  principle,  the  V.  C. 
answers,  in  a  court  of  equity.  Common  mistake  is  the  ordinary  head  of 
jurisdiction  ;  and  every  party  who  comes  to  be  relieved  against  an  agree- 
ment he  has  signed,  by  whomsoever  drawn,  comes  to  be  relieved  against 
his  own  mistake.2 

Where  an  estate  has  been  purchased  at  auction,  under  a  mistake  as 
to  the  lot  put  up  for  sale,  the  court  will  not  decree  a  specific  execution  of 
the  agreement,  but  leave  the  vendor  to  his  remedy  at  law  for  damages, 
if  he  has  sustained  any.3 

In  cases  where  there  are  written  memorandums  made  by  the  parties 
preparatory  to  the  final  agreement,  there  is  less  danger  in  correcting 
mistakes  in  the  latter,  than  if  the  whole  rested  in  parol.  This  does  not 
conflict  with  the  general  rule,  that  all  antecedent  memorandums  and  con- 
versations arc  deemed  to  be  merged  in  the  final  agreement.  For  if  it 
is  shewn  that  the  latter  was  made  in  pursuance  of  the  former,  and  was 
intended  to  carry  out  the  same  in  a  more  formal  way,  and  if  it  is  clearly 
shewn  that,  by  accident,  mistake  or  fraud,  it  fails  to  do  so,  the  case  falls 
within  the  same  exception  already  mentioned,  which  allows  written  con- 
tracts and  instruments  to  be  reformed  for  accidents  and  mistakes,  and 
those  accidents  and  mistakes  to  be  proved  by  parol  evidence,  The  gen- 
eral rule,  in  such  cases,  is  subordinate  to  the  undisputed  jurisdiction  of 
equity  over  accidents,  mistakes  and  fraud.4  In  conformity  to  these  views, 
marriage  settlements  have  frequently  been  reformed  and  made  according 
to  the  original  articles  or  proposals,  and  deeds  have  been  made  to  corres- 
pond with  executory  contracts,  where  the  discrcpcncy  was  clearly  the 
result  of  mistake  or  fraud.     The  cases  on  this  subject  are  extremely 

Millspaugfc  ^.  McBride,  7  Paige,  509.        3  Malins  v.  Freeman,  2  Keen,  25. 
Bull  v.  Storie,  1  Sim.  &  Stu.  210,  220.        4  Ball  v.  Storie   1  Sim.  &Stu.210,  220. 


80  Mistake  op  Fact.  [Cli.  V 

numerous,  and  most  of  the  early  ones  are  collected  in  the  notes  to  Fon- 
blanque's  Equity,  and  there  are  many  recent  decisions  on  the  same 
subject.1 

It  is  sometimes  made  a  question,  how  far  equity  will  relieve  in  case  of 
mistake  in  wills.  Lord  Cowper  decided  more  than  a  century  ago,  that  the 
canceling  a  former  will  by  mistake,  or  on  the  presumption  that  a  later 
will  is  good,  which  proves  void,  will  not  let  in  the  heir,  but  may  be  re 
lieved  against  in  equity.2  In  such  case  equity  does  not  alter  the  will 
It  merely  relieves  the  party  from  the  effect  of  the  mistake,  thus  placing 
him  in  the  same  condition  as  if  the  mistake  had  not  happened.  The 
revised  statutes  have  provided  that  no  will  in  writing  shall  be  revoked 
or  altered  otherwise  than  by  some  other  will  in  writing,  or  some  other 
writing  of  the  testator  declaring  such  revocation  or  alteration,  and  ex- 
ecuted with  the  same  formalities  with  which  the  will  itself  was  required 
by  law  to  be  executed.  Subsequent  sections  provide  in  what  cases  mar- 
riage and  issue  shall  operate  as  a  revocation.3  No  doubt  the  statute 
intended  to  cut  off  all  modes  of  revocation  except  those  mentioned  in  the 
act.  Under  our  statute  it  has  been  held,  that  a  will  cannot  be  corrected 
because  the  testator  misapprehended  its  effect ;  and  that,  as  a  general 
rule,  parol  evidence  is  inadmissible  to  supply  omissions,  or  to  control  or 
explain  the  intention,  or  vary  the  legal  construction.4  Such  errors  are 
mistakes  of  law  only. 

This  principle  does  not  prevent  equity  from  correcting  mistakes  as  to 
the  person  named  as  legatee  in  a  will.  If  the  context  affords  sufficient 
evidence  of  the  identity  of  the  person  intended  as  legatee,  the  will 
alone  must  be  looked  to  in  order  to  clear  up  the  difficulty  and  determine 
the  question.  If,  after  examining  the  whole  will,  it  is  still  impossible  to 
ascertain  from  such  a  source  alone  who  is  the  proper  person  to  take,  then 
recourse  must  be  had  to  parol  evidence.  In  no  case,  however,  is  the 
bequest  to  be  decreed  void  for  uncertainty  as  to  the  person,  provided  the 
person  intended  to  take  can  be  identified  by  any  competent  evidence.  If 
a  legacy  is  given  to  a  person  by  a  correct  name,  but  with  a  wrong  de- 
scription or  addition,  the  latter  will  not  vitiate  the  bequest,  but  will  be 
rejected.     Thus,  where  a  legacy  was  left  to  Mary  S..  wife  of  Nathaniel 

1  Fonbl.  Equity,  B.  1,  eh.  3,  §  1,  and  v.  Israel,  9  id.  556.     Rogers  v.  Atkinson, 

notes.     The  Marquis  of  Exeter  v.  The  1  Kelly's  R.  12.     Newson  v.  Bufferlow 

Marchioness  of  Exeter,  3  Mylne&  Craig,  1  Dev.  Eq.  379. 

321.     The  Marquis  of  Breadalhane  v.  The  2  Onions  v.  Tyler,  1  P.  Wms.  345. 

Marquis  of  Chardos,  2  id.  711.     Pearce  8  2  R.  S.  64,  §42  et  seq. 

v.  Verbeke,  2  Beavan,  333.     Brown  and  *  Arthur  v.  Arthur,  10  Barb.   9.     Gil 

>vife  v.  Bonnes  et  al.  8  Leigh,  1.     Long  bert  v.  Gilbert,  9  id.  532. 


Oh  1.1  Mistake  of  J?  act.  81 

S.,  $300 — Mary  S.'s  husband  was  named  Abraham,  and  Sarah  S.'s  hus- 
band was  named  Nathaniel  S.  Upon  extrinsic  evidence  and  circum- 
stances, it  was  held  that  Mary  Smith  was  intended.1  Here,  it  is  obvious, 
no  mistake  in  the  will  is  corrected.  An  ambiguity,  created  by  external 
evidence,  is  removed  in  the  same  way. 

So  where  the  name  of  the  legatee  was  entirely  mistaken  by  the  testa- 
tor, as  Cornelia  Thompson  for  Caroline  Thomas,  the  bequest  was  held 
good  ;  and  the  intention  of  the  testator  and  the  misnomer  being   satis 
factorily  shewn,   the  legacy  was  ordered  to  be  paid  to  the  person  in 
tended.2  *> 

In  an  early  case,  more  than  a  century  ago,  a  mistake  in  both  the  chris- 
tian and  surname  of  the  legatee  was  disregarded,  and  the  money  ordered  to 
be  paid  to  the  person  intended  ;3  and  the  same  doctrine  was  repeated  at 
a  later  period.4  v  * 

Chancellor  Wahvorth,  where  a  testator  made  a  bequest  to  a  person  by 
a  wrong  christian  name,  admitted  parol  evidence  to  shew  what  person 
was  intended.  He  said  the  cases  are  very  contradictory  on  the  subject 
of  admitting  parol  evidence  to  correct  mistakes  in  testamentary  disposi- 
tions. If  a  legacy  was  given  by  a  testator  to  his  brother  John,  and  it 
turned  out  in  evidence  that  he  had  but  one  brother,  whose  name  was 
James,  there  could  bo  no  doubt  that  the  latter  would  be  entitled,  because 
the  description  of  brother  in  that  case  would  alone  be  sufficient,  and  the 
name  might  be  rejected  as  surplusage.5 

In  the  foregoing  cases  the  bequest  was  of  a  personal  thing.  Lord 
Macclesfield,  in  Branmont  v.  Fell,  (supra,)  in  speaking  of  the  case  before 
him.  which  was  where  there  was  a  mistake  of  both  the  christian  and  sur- 
name of  the  legatee,  says,  if  this  had  been  a  grant,  nay,  had  it  been  a 
devise  of  land,  it  had  been  void,  by  reason  of  the  mistake  both  of  the 
christian  and  surname.  But  this  being  a  bequest  of  a  personal  thing,  a 
chattel  interest,  makes  it  a  different  case,  and,  as  originally,  a  bequest  of 
a  legacy  was  governed  by,  and  construed  according  to,  the  rules  of  the 
civil  canon  law,  so  shall  it  be  after  making  the  statute  of  frauds,  provided 
there  be  a  will  in  writing.6 

Where  a  testator  having  two  sons  named  John,  evidence  dehors  the 
will  may  be  given  to  shew  which  son  was  meant.  But  if  no  direct  evi- 
dence can  be  given  to  shew  the  intent,  the  will  is  void  for  the  uncertainty.7 

1  Smith  v.  Smith,  1  Edw.  Ch.  R.  189.  4  Brad  win  v.  Harpur,  Amb.  374. 

S.  C.  on  appeal,  4  Paige,  271.  6  Connolly  v.  Pardon,  1  Paige,  291 

8  Thomas  v.  Stevens,  4  J.  Ch.  Pw.  607.  •  Branmont  v.  Fell,  2  P.  Wras.  142. 

3  Beaumont  v.  Pell,  2  Atk.  140.  7  Lord  Cheney's  case,  5  Co.  68. 
Eq    Jcr.                                       11 


82  Mistake  of  Law.  fCh.  J. 

Lord  Hardwicke  in  one  case  said,  parol  evidence  was  admissible  to  shew 
who  was  intended  where  a  legacy  is  given  to  one  by  a  nickname,  but  he 
would  not  allow  such  evidence  of  the  intention  c£  the  testator,  where 
there  is  only  a  blank.1 

N:  reason  is  perceived  why  a  plain  and  palpable  mistake  in  a  will  may 
not  be  corrected  in  equity,  as  well  as  a  similar  mistake  in  a  deed.  The 
object  of  the  correction  in  both  cases  is  the  same,  to  make  the  instrument 
what  the  party  intended,  when  that  intention  was  defeated  >j  a  mistake 
of  fact. 

A  testator  by  his  will  gave  legacies  of  five  hundred  pounds  to  two 
grandchildern  of  his  sister,  describing  them  by  name,  and  their  residence 
in  America  ;  and  afterwards  by  a  codicil  he  revoked  these  legacies,  giving 
as  a  reason  that  the  legatees  were  dead.  The  testator  was  mistaken  in 
the  fact  of  the  death  of  the  legatees,  as  both  were  living  at  the  time  of 
his  death.  Lord  Loughborough,  held  that  there  was  no  revocation,  the 
reason  for  it  being  false,  whether  by  misinformation  or  mistake,  is  per- 
fectly indifferent,  and  he  directed  the  legacies  to  be  paid  on  proof  of  iden 
tity  of  the  legatees.3 

So  where  the  residue  of  three  per  cent  annuities  were  given  to  the 
two  daughters  of  A.,  and  A.  had  three  daughters  ;  they  all,  on  the  ground 
of  mistake,  were  decreed  to  take  equal  shares.3 

Parol  evidence  is  not  admissible  to  contradict  a  will.4  The  mistakes 
in  wills  which  equity  will  correct,  must  be  such  as  appear  on  the  face 
of  the  will,  otherwise  no  relief  can  be  granted.  Evidence  of  matter 
dehors  the  will  to  shew  the  mistake,  is  not  sufficient.5  Whenever  there 
is  a  clear  mistake,  or  a  clear  omission,  recourse  must  be  had  to  the  gen- 
eral scope  of  the  will,  and  the  general  intention  to  be  collected  from  it.6 
In  one  of  these  cases  the  court  substituted  twenty  thousand  pounds  for 
thirty  thousand  pounds,  the  court  being  clearly  of  the  opinion  that  the 
former,  and  not  the  latter,  was  the  sum  intended  by  the  testator  to  be 
given.  And  the  principle  of  these  cases  was  recognized  by  the  supreme 
court  in  a  recent  case.7 

Where  a  testator  in  the  former  part  of  his  will  gives  a  certain  horse 
to  A.,  and  in  a  subsquent  part  of  the  will  gives  the  same  horse  to  B.,  the 
better  opinion  is,  that  the  latter  legacy  is  a  revocation  of  the  former,  con- 

4  Baylis  v.  Church,  2  Atk.  239.    See  5  Id. 

Martin  v.  Ballon,  13  Barb.  119.  c  Melish  v.  Melish,  4  Yes.  47.     Philips 

"  Campbell  v.  Frink,  3  Yes.  jr.  320.  v.  Chamberlain,  id.  oX 

3  Btebbins  v.  Warily,  2  Bro.  C.  0.  85.  7  Martin  v.  Ballou.   13  Barb.  119,  122 

4  I'iricU  v.  Litchfield,  2  Atk.  372.  and 
aotes. 


£h.  l.J  Mistake  of  Law.  83 

trary  to  the  opinion  of  Swinburne,  who  thought  the  horse  must  be  divided 
between  the  two  legatees.1 

Equity  sometimes  relieves  in  case  of  a  defective  execution  of  a  power, 
on  the  ground  of  accident  or  mistake,  but  not  in  case  of  a  non-execution  of 
a  power,  as  distinguishable  from  a  trust.  Relief  is  granted  in  such  case, 
in  favor  of  creditors,  purchasers  for  valuable  consideration,  a  wife,  or  chil- 
dren. The  master  of  the  rolls  said,  in  an  early  case,  that  there  was  a 
difference  betwixt  a  non-execution  and  a  defective  execution  of  a  power. 
The  latter  will  always  be  aided  in  equity,  under  the  circumstances  men 
tioned,  which  were  the  provisions  for  a  wife  who  had  none  before,  it  being 
the  duty  of  every  man  to  pay  his  debts,  and  a  husband  or  father  to  pro 
vide  for  his  wife,  or  child.  But  this  court  will  not  help  the  non-execution 
of  a  power,  since  it  is  against  the  nature  of  a  power,  which  is  left  to  the 
free  will  and  election  of  the  party  whether  to  execute  or  not,  for  which 
reason  equity  will  not  say  he  shall  execute  it,  or  do  that  for  him  which 
he  does  not  think  fit  to  do  himself.2 

Sir  William  Grant  and  Lord  Erskine  both  expressed  dissatisfaction 
with  this  distinction,  as  not  quite  consistent  with  the  principles  of  equity, 
though  they  admitted  that  it  was  fully  established  by  authority.3  And 
Lord  Erskine  observed,  that  the  authorities  are  most  important,  and  follow 
in  a  series  from  the  year  1668  to  the  end  of  Lord  ITardwicke's  time  ; 
from  which  it  appears,  that  the  distinction  between  the  non-execution  and 
the  defective  execution  of  a  power  has  been  constantly  taken.  In  a  still 
Inter  case  the  master  of  the  rolls  said,  that  equity  would,  in  favor  of  per- 
sons standing  in  a  situation  entitling  them  to  its  protection,  supply  a 
defect  in  the  execution  of  a  power  which  consists  in  the  want  of  some 
circumstance  required  in  the  manner  of  the  execution,  as  the  want  of  a 
s.:al  or  of  a  sufficient  number  of  witnesses,  or  where  it  has  been  exercised 
by  a  deed  instead  of  a  will.4  It  will  not,  however,  correct  an  error  in  an 
instrument,  as  has  been  before  shewn,  occasioned  by  the  ignorance  of  the 
parties  in  matter  of  law.3  The  distinction  seems  to  be  founded  in  reason 
and  good  sense.  Equity  could  not  compel  the  execution  of  a  power,  where 
there  is  no  trust,  without  depriving  the  party  of  all  discretion.  On  the 
other  hand,  when  the  party  undertakes  to  execute,  and,  by  accident  or 
mistake,  fails  to  accomplish  his  purpose,  equity  interposes  to  carry  the 

1  Ulrich  v.    Litchfield,    2   Atk.    375.  3  Holmes  v.  Coghill,  7  Yes.  506 ;   S.  C. 

Sims  v.  Doughty,  5  Ves.  243.     Purse  v.  ou  appeal,  12  Ves.  212. 

6naplin,.l  Atk.  II 6.  4  Cockerell  v.  Cholmeley,  1  Rns.  &  My. 

-'  Toilet  v.  Toiler,  2  P.  Wms.  400.    1  418. 

[•"onh    !:>).  book  1,  el*.  1,  .^  7,  and  note;.  '  Id. 


84  Mistake    bf  Law.  [Ch.  1. 

intention  into  effect  in  favor  of  those  who  are  peculiarly  entitled  to  its 
protection,  creditors,  purchasers,  wives  and  children.  And  the  master  of 
the  rolls  in  one  case  said,  that  the  court  has  never  gone  beyond  supplying  a 
defective  execution  of  a  power  in  favor  of  that  class  of  persons.1  And 
in  that  case  he  refused  it  in  favor  of  the  husband. 

The  revised  statutes  of  New- York  have  abolished  powers  as  they  ex- 
isted in  1830,  and  have  enacted  that  the  creation,  construction  and  execu- 
tion of  powers  shall  be  governed  by  the  provisions  of  the  act.2  The 
general  subject  of  powers  does  not  belong  to  this  treatise.  At  present  we 
are  considering  only  the  cases  where  courts  will  relieve  against  mistakes 
in  the  execution  of  powers.  On  this  subject  it  is  provided,  that  when 
the  grantor  shall  have  directed  any  formalities  to  be  observed  in  the  ex- 
ecution of  the  powers  in  addition  to  those  which  would  be  sufficient  by 
law  to  pass  the  estate,  the  observance  of  such  additional  formalities  shall 
not  be  necessary  to  a  valid  execution  of  the  power.  Where  the  condi- 
tions annexed  to  a  power  are  merely  nominal,  and  evince  no  intention  of 
actual  benefit  to  the  party  to  whom,  or  in  whose  favor,  they  are  to  be 
performed,  they  maybe  wholly  disregarded,  in  the  execution  of  the  power. 
"With  these  exceptions,  the  intention  of  the  grantor  of  the  power,  as  to 
the  mode,  time,  and  conditions  of  its  execution  shall  be  observed,  subject 
to  the  power  of  the  court  to  supply  a  defective  execution  in  the  cases 
thereafter  provided.3 

The  statute  provides,  that  every  trust  power,  unless  its  -execution  or 
non-execution  is  made  expressly  to  depend  on  the  will  of  the  grantee,  is 
imperative,  and  imposes  a  duty  on  the  grantee,  the  performance  of  which 
may  be  compelled  in  equity,  for  the  benefit  of  the  parties  interested.4  And 
it  further  provides,  that  where  the  execution  of  a  power  in  trust  shall  be 
defective,  in  whole  or  in  part,  its  proper  execution  may  be  decreed,  in 
equity,  in  favor  of  the  persons  designated  as  the  objects  of  the  trust. 
Purchasers  for  valuable  consideration,  claiming  under  a  defective  execution 
of  any  power,  shall  be  entitled  to  the  same  relief  in  equity,  as  similar 
purchasers,  claiming  under  a  defective  conveyance  from  an  actual  owner.' 

?  Mooder  v.  Reid,  1  Mad.  R.  516,  521.  4  1  R.  S.  734,  §  96. 

2  1  R.  S.  732.  B 1  R.  S.  737,  §§  131, 132. 

'  1  R.  S.  736,  §§  119, 120,  191. 


CHAPTER   II. 


OF    ACCOUNT. 


THE  action  of  account  is  one  of  the  most  ancient  of  the  common  law 
actions.  Originally  it  could  be  maintained  only  against  a  bailiff, 
receiver  or  guardian,  or  in  favor  of  trade,  between  merchants,  yet  it  could 
not  be  maintained  by,  or  against,  their  representatives.1  By  various 
statutes  it  was  given  first  to  the  executors  of  merchants,  then  extended 
to  the  executors  of  executors,  and  afterwards  to  administrators ;  and 
finally,  by  the  3  and  4  Ann.  ch.  16,  it  was  allowed  to  be  brought  against 
executors  and  administrators  of  every  guardian,  bailiff  and  receiver,  and 
by  one  joint  tenant,  tenant  in  common,  his  executors  and  administrators, 
against  the  other  as  bailiff  for  receiving  more  than  his  share,  and  against 
their  executors  and  administrators.2 

The  New- York  statute  of  6th  February,  1788,  incorporated  the  provis- 
ions of  the  English  statutes,  and  pointed  out,  very  blindly,  the  mode  of 
proceeding  in  the  action.3  The  process  to  compel  an  appearance  was  by 
summons,  attachment  and  outlawry ;  and  on  the  defendant's  appearing 
and  submitting,  he  was  adjudged  to  account,  whereupon  auditors  were 
appointed  to  take  the  accounts.  He  was  liable  to  be  committed  to  jail 
for  refusal  to  account,  and  for  neglecting  to  pay  what  was  found  due. 
The  auditors  were  empowered  to  examine  the  parties  upon  oath. 

Though  an  action  of  account  could  not,  at  common  law,  have  been  main- 
tained against  the  representatives  of  bailiffs,  receivers,  or  guardians,  yet 
a  bill  in  equity  for  an  account  might  be  sustained;  and  such  appears  to 
have  been  the  usual  remedy  prior  to  the  remedial  statutes.4 

Chancellor  Kent  in  one  case  before  him  observed,  that  courts  of  law 
and  equity  have  concurrent  jurisdiction  in  matters  of  account.  "In  that 
action,"  he  observes,  "  the  auditors  have  all  the  requisite  powers,  for  they 
can  compel  the  parties  to  account,  and  to  be  examined  under  oath.     And 

1  Co.  Litt.  90,  b.  2  Greenl.  4.     1  R.  L.  of  1813,  p.  90. 

*  Fonb.  Eq.  book  2,  ch.  7,  §  6,  note  N.        *  Fonb.  Eq.  book  2,  cb.  7,  §  G,  note. 

(85) 


36  Of  Account.  |Ch.  2 

I  have  not,"  saiJ  he,  "been  able  to  discern  any  good  reason,  why  that 
action  has  so  totally  fallen  into  disuse."1  At  the  time  the  learned  chancel 
lor  made  the  remark,  there  Avas  not  a  trace  in  the  reported  decisions  of  our 
courts,  that  an  action  of  account  had  ever  been  brought  in  the  state, 
though  it  is  believed  that  it  had  been  attempted  in  a  few  instances,  with 
what  success,  we  are  left  to  conjecture. 

At  the  revision  of  the  laws  in  1830,  an  attempt  was  made  to  bring 
this  action  into  repute.  It  was  enacted  that  when  any  action  of  account 
shall  be  brought  by  one  or  more  partners,  or  by  any  joint  tenant  or  tenant 
in  common,  or  against  any  guardian,  bailiff,  receiver,  or  otherwise,  and 
judgment  be  rendered  that  the  parties  account,  or  that  the  defendant 
account  to  the  plaintiff,  the  cause  shall  be  referred  to  referees,  in  the  same 
manner,  and  subject  to  the  same  provisions,  as  are  prescribed  in  cases  of  a 
long  account.  The  referees  are  then  required  to  proceed  as  in  other 
cases  of  references,  and  they  are  empowered  to  examine  the  parties  upon 
oath,  and  to  require  the  production  of  books  of  account,  papers  and  docu- 
ments, in  the  custody  or  under  the  control  of  either  party.2  Subsequent 
sections  prescribe  the  proceedings  before  the  referees,  and  the  judgment 
to  be  given.  While  at  common  law,  the  parties  could  plead  after  the 
judgment  quod  computet,  that  practice  seems  to  have  been  superseded 
by  the  revised  statutes,  and  it  was  intended  that  the  action  should  pro- 
ceed like  other  actions,  which  are  referred  to  referees.3 

The  substitution  by  the  revised  statutes  of  referees  for  auditors,  and  the 
ordinary  proceedings  on  a  reference  for  the  ancient  pleadings  subsequent 
to  the  judgment  quod  computet,  at  common  law,  does  not  seem  to  have 
introduced  the  action  to  much  favor.  The  first  appearance  of  the  action, 
after  the  change,  was  in  1838,  when  the  only  point  decided  was,  that  the 
defendant  was  not  entitled  to  notice  of  hearing,  before  the  referees,  when 
£e  had  not  appeared  in  the  action  either  in  person  or  by  attorney.4  About 
four  years  afterwards  another  action  was  brought,  and  decided  in  favor  of 
the  defendant  on  special  demurrer  to  the  declaration.5  The  defects  in  the 
declaration  were  that  it  was  too  general,  one  count  charging  the  defend- 
ant as  receiver,  without  stating  by  whose  hands  the  money  was  received, 
and  another  charging  him  as  bailiff,  without  specifying  the  kind  or  quality 
of  goods,  or  alleging  that  the  defendant  had  received  more  than  his  share. 
It  does  not  appear  by  the  report  that  the  court  gave  the  plaintiff  leave 
to  account.     They  treated  the  action  with  evident  disfavor.     They  said 

1  Duncan  v.  Lyon,  3  John.  Ch.  E.  361.        4  Jacobs  v.  Fountain,  19  Wend.  121. 

2  2  R.  S.  385,  f§  49,  50.  5  McMurray  v.  Rawson,  3  Hill,  59. 

3  Kelly  v.  Kelly,  3  Barb.  S.  0.  R.  419. 


Oh.  2.]  ©f  Account.  87 

that  the  revised  statutes  did  not  dispense  with  any  of  the  old  forms  of 
proceeding  previous  to  the  judgment  quod  computet.  And  Bronson,  J., 
said,  "  All  the  hooks  agree,  that  this  is  one  of  the  most  difficult,  dilatory 
and  expensive  actions  that  ever  existed,  and  it  has  long  since  given  place 
to  other  remedies.  In  this  state,  it  does  not  appear  that  more  than  one 
action  of  account  was  ever  brought,  before  Jacobs  v.  Fountain,  (19  Wend. 
121,)  and  the  present  experiment  will  probably  be  the  last.  In  England, 
the  action  seem3  not  to  have  been  brought  more  than  a  dozen  times  within 
the  last  two  centuries,  and,  in  most  of  the  cases,  the  difficulty  has  been 
about  the  form  of  the  remedy,  rather  than  the  rights  of  the  parties.  One 
of  the  last  cases  which  I  have  noticed  in  the  English  books,  was  brought 
in  1768  and  ended  in  1770.1  But  it  is  worthy  of  remark,  that  the  account 
was  never  taken.  The  case  was  decided  on  a  demurrer  to  a  plea  before 
the  auditors.  Ch.  J.  Wilmot  said  he  was  glad  to  see  the  action  of  account 
revived ;  but  at  the  same  time  told  the  counsel,  '  the  court  was  in  some 
doubt  how  the  judgment  must  be  entered,  and  about  the  damages ;'  and 
lie  recommended  expedition,  as  the  plaintiff  was  very  old,  and  the  cause 
had  been  depending  (in  chancery  and  at  law)  fourteen  years,  and 
it  was  high  time  it  should  be  ended.  The  counsel  took  until  the  next 
term  to  find  out  what  judgment  should  be  entered,  and  whether  they  were 
right  at  the  last,  does  not  appear."  After  alluding  to  three  subsequent 
cases  in  England,  where  the  action  was  brought,2  he  proceeds  :  "  In  some 
of  the  states  the  action  is  in  use  in  a  modified  form,  to  supply  the  defect 
in  their  system  from  the  want  of  a  court  of  equity.  In  this  state  there 
is  no  such  reason  for  attempting  to  revive  and  remould  a  remedy,  which 
was  always  difficult,  and  has  now  become  obsolete ;  and  if  parties  choose 
to  bring  account,  they  must  take  the  action  as  it  was  left  by  the  ancients 
Subject  only  to  such  alterations  as  have  been  made  by  the  legislature." 

An  action  of  account  was  again  brought  in  this  state,  as  late  as  1848. 
and  was  sustained.3  The  learned  judge  who  gave  the  opinion  of  the  su- 
preme court  said,  that  since  the  revised  statutes,  there  has  been  no  morp 
difficulty  in  prosecuting  an  action  of  account  after  a  judgment  of  quod 
computet,  than  in  prosecuting  an  action  of  assumpsit  involving  the  ex- 
amination of  a  long  account.  The  court  held  the  action  sustainable  under 
the  statute,  between  partners  in  any  business,  and  that  the  action  was 
not  limited  to  mercantile  copartnerships.  In  that  case,  too,  the  sum  re- 
covered was  less  than  one  hundred  dollars,  though  the  sum  claimed  wag 


1  Godfrey  v.  Saunders,  3  Vils.  73.  ard,  3  Dowl.  &  Ryl.  596 ;  and  Baxter  v, 

1  The  cases  referred  to  are,  Smith  v.     Hozier,  5  Bing.  N.  S.  288. 
Smith,  1  Chitty's  R.  10 ;  Archer  v.  Prich-        3  Kelly  v.  Kelly,  3  Barb.  S.  0.  R  419. 


88  Of  Account.  [Ch.  2 

much  more  than  that  sum.  Hence  it  was  not  a  case,  as  the  law  then 
3tood,  in  which  the  plaintiff,  had  he  filed  a  bill  in  chancery,  could  have 
recovered  costs  ;  but  he  would,  on  the  contrary,  have  been  subjected  to 
costs  of  the  other  party  in  the  discretion  of  the  court.1 

The  abolition  of  the  distincticn  between  actions  at  law  and  suits  in 
equity,  and  the  forms  of  all  such  actions  and  suits  heretofore  existing, 
jind  the  substitution  therefor  of  one  form  of  action  for  the  enforcement 
or  protection  of  private  rights  and  the  redress  of  private  wrongs,  to  be 
denominated  a  civil  action,  have  superseded  the  scholastic  refinements 
jiid  cumbrous  proceedings  in  the  action  of  account  at  common  law.2  But 
as  equity  still  exists  as  a  distinct  branch  of  our  remedial  system  of  Jus 
tice,  and  as  the  relief  usually  prayed  in  a  bill  for  an  account  is  of  an 
equitable,  rather  than  of  a  legal  nature,  the  treating  of  the  subjects, 
formerly  relievable  by  action  of  account,  or  by  a  bill  in  chancery  for  an 
account,  falls  appropriately,  now,  as  well  as  formerly,  under  the  head  of 
equity  jurisprudence. 

Two  of  the  grounds  on  which  equity  formerly  obtained  jurisdiction  in 
the  common  law  action  of  account,  were  the  existence  of  the  right  of  the 
defendant,  in  some  cases,  to  wage  his  law  in  common  law  courts,  which 
he  did  not  possess  in  equity,  and  the  power  which  the  latter  court  had  of 
enforcing  a  discovery,  which  the  former  had  not.  Neither  of  these 
grounds  now  exist  in  this  state.  The  wager  of  law  has  long  since  been 
abolished,3  and  other  modes  of  examination  of  parties  have  taken  the  place 
of  a  discovery  in  equity,4  though  the  latter  has  not  been  abolished,  except 
in  ai.l  of  the  prosecution  or  defense  of  another  action.  Still  the  jurisdic 
tion  of  equity  having  once  been  obtained,  would  not  be  lost  by  such 
changes  of  the  law.  Blackstone  says,  "  that  courts  of  equity,  as  incident 
to  accounts,  take  a  concurrent  cognizance  of  the  administration  of  personal 
assets ,  consequently  of  debts,  legacies,  the  distribution  of  the  residue, 
and  the  conduct  of  executors  and  administrators.  As  incident  to  account, 
they  also  take  the  concurrent  jurisdiction  of  titles,  and  all  questions  re- 
lating thereto ;  and  of  all  dealings  in  partnerships,  and  many  other  mer- 
cantile transactions ;  and  so  of  bailiffs,  receivers,  factors  and  agents.  It 
would  be  endless  to  point  out  all  the  several  avenues  in  human  affairs, 
and  in  this  commercial  age,  which  lead  to  or  end  in  accounts."5 

In  many  of  the  foregoing  cases  courts  of  law  could  conveniently  exer- 
cise jurisdiction,  under  the  action  of  assumpsit,  covenant  or  debt,  and 

1  2  R.  S.  173,  §  37.     Smite  v.  Williams,        3  1  Greenl.  L.  N.  Y.  295. 
1  Paige,  364.  4  Code  of  Procedure,  §  389  et  seq. 

8  Code  of  Procedure,  §§  69,  140.  5  3  Black.  Cam.  437. 


Oh.  2.J  Of  Account.  89 

under  the  code,  by  an  ordinary  civil  action,  without  invoking  equitable 
relief.  The  salutary  provision  of  the  code,  for  referring  all  or  any  of  the 
issues  in  a  cause  by  consent  to  one  or  more  referees ;  and  without  such 
consent,  to  direct  a  reference,  when  the  trial  of  an  issue  of  fact  shall  re- 
quire the  examination  of  a  long  account  on  either  side  ;  or  when  the  tak- 
ing of  an  account  shall  be  necessary  for  the  information  of  the  court, 
before  judgment,  or  for  carrying  a  judgment  or  order  into  effect,  has 
superseded  most  of  the  difficulties  which  formerly  existed  in  the  action  at 
law.1  The  power  given  to  the  referees  ;  the  mode  of  procedure  before 
them  ;  their  report  upon  the  whole  issue  ;  and  the  method  prescribed  for 
reviewing  their  decision,  are  eminently  calculated  to  subserve  the  purposes 
of  justice.2  Th;  practice  in  this  respect  is  the  same,  whether  the  matter 
referred  be  of  legal  or  equitable  cognizance. 

It  will  be  found  more  convenient,  in  the  discussion  of  the  doctrine  of 
account,  to  restrict  our  inquiries  to  a  few  only  of  the  subjects  which 
often  terminate  in  account,  or  which  are  incidental  to  the  action.  We 
shall  treat  the  subject  of  legacies,  marshaling  of  assets,  and  various  other 
matters  which  often  lead  to  account,  under  other  heads.3 

At  common  law,  an  action  of  account  lay  only  in  cases  where  there  was 
either  a  privity  of  deed  by  the  consent  of  the  party,  as  against  a  bailiff 
or  receiver,  or  a  privity  in  law,  ex  provisione  legis,  as  against  a  guardian 
in  socage.4  In  an  account  against  a  receiver,  who  receiveth  money  to 
the  use  of  another,  to  render  an  account,  he  shall  not,  says  Coke,  upon 
his  account,  be  allowed  his  expenses  and  charges ;  and,  therefore,  a  man 
could  not  charge  a  bailiff  as  a  receiver,  because  then  the  bailiff  should 
loose  his  expenses  and  charges.  In  an  account  against  a  receiver,  the 
plaintiff  must  declare  by  whose  hands  the  defendant  received  the  money, 
which  he  shall  not  do  in  the  case  of  a  bailiff.  But  in  some  cases  in  an 
action  of  account  against  one,  as  receptor  denariorum,  he  shall  have  al- 
lowance of  his  expenses  and  charges,  and  shall  also  account  for  the  profit 
he  received,  or  might  reasonably  receive  ;  and  this  was  provided  by  law 
in  favor  of  merchants,  and  for  the  advancement  of  trade  and  traffic.  As 
if  two  joint  merchants  occupy  their  stock,  goods  and  merchandises  in 
common,  to  their  common  profit,  one  of  them,  naming  himself  merchant, 
shall  have  an  account  against  the  other,  naming  him  a  merchant,  and  shall 
tharge  him  as  receptor  denariorum,  &c.5 


1  Code  of  Procedure  §  270  et  seq.  4  Fonb.  Eq.  book  2,  ch.  7,  §  6.     Co.  Litt 

1  Code,  §  272  172,  a. 


•  See  post,  Chapter  on  Tbcbts.  *  Co.  Litt.  172,  a. 

Kg.  Jlu.  12 


90  Of  Account.  [Ch.  2, 

Some  of  the  grounds  on  which  equity  originally  acquired  jurisdiction 
in  the  action  of  account  have  been  hinted  at,  but  the  more  general 
ground  is  believed  to  be,  not  that  the  party  was  without  remedy  at  law, 
but  that  the  remedy  in  equity  was  more  adequate  and  complete,  and  that 
it  prevented  a  multiplicity  of  suits.  Lord  Hardwicke  expressed  himself 
in  favor  of  the  jurisdiction,  in  a  case  before  him,  because  it  was  a  mattei 
of  contract  and  account,  and  consequently  a  proper  subject  for  the  juris 
diction  of  a  court  of  equity.1 

The  preventing  of  a  multiplicity  of  suits  has  been  often  held  a  good 
ground  for  equity  to  interfere ;  and  having  thus  rightfully  acquired  jurisdic- 
tion for  one  purpose,  the  practice  was  to  retain  it  for  the  purpose  of  full 
and  general  relief.2  Cases  of  mutual  accounts,  founded  on  privity  of 
interest,  are  undisputed  grounds  of  equity  jurisdiction.3 

In  Bacon's  Abridgment,  after  speaking  of  the  difficult,  dilatory  and  ex- 
pensive proceedings  in  the  action  of  account  at  common  law,  the  author 
says  :  "  It  is  now  seldom  used,  especially  if  the  party  have  other  remedy, 
as  debt,  covenant,  case ;  or  if  the  demand  be  of  consequence,  and  the 
matter  of  an  intricate  nature  ;  for  in  such  case  it  is  more  advisable  to  re- 
sort to  a  court  of  equity,  Avhere  matters  of  account  are  more  commodi- 
ously  adjusted,  and  determined  more  advantageously  for  both  parties  ;  the 
plaintiff  being  entitled  to  a  discovery  of  books,  papers  and  the  defend- 
ant's oath ;  and,  on  the  other  hand,  the  defendant  being  allowed  to  dis- 
count the  sums  paid  and  expended  by  him  ;  to  discharge  himself  of 
sums  under  forty  shillings  by  his  own  oath,  (provided  he  swears  positive- 
ly, and  not  as  to  belief  only  ;)  and  if  by  answer  or  other  writing  he  charges 
himself  by  the  same  to  discharge  himself,  which  will  be  good,  if  there  be 
no  other  evidence :  farther,  all  reasonable  allowances  are  made  to  him  ; 
and,  if  after  the  account  is  stated,  any  thing  be  due  to  him  upon  the  bal 
ance,  he  is  entitled  to  a  decree  in  his  favor." 

Courts  of  equity  have  entertained  jurisdiction  in  account,  not  only 
when  the  accounts  were  mutual  accounts,  founded  on  privity  of  con- 
tract, but  also  when  the  accounts  were  on  one  side  only,  and  a  discovery 
was  sought,  in  aid  of  the  account,  and  obtained.5  On  the  principle  of 
discovery  it  has  been  entertained  in  case  of  agency,  by  the  principal 

1  Billon  v.  Hyde,  1  Atk.  128.  ley  v.  Cramer,  4  Cowan,  717.    Porter  v. 

2  Conro  v.  Port  Henry   Iron   Co.,  12     Spencer,  2  J.  Ch.  K.  171. 
Barb.  27.  Armstrong  v.  Gilchrist,  2  John.        *  Bacon's  Abr.  title  Accompt. 

Cas.  424.    King  v.  Baldwin,  17  J.  Pv.  388.  6  Post  v.  Kimborly,  9  J.  E.  470.   Lud- 

Eathbun  v.  Warren,  10  id.  587.     1  Mad.  low  v.  Simons,  2  Cai.  Ca.  in  Error,  38, 

Cb.  Pr.  71.  39.    Barker  v.  Dacie,  6  Ves.  687.    Bath- 

»  Post  v.  Kimberly,  9  J.  E.  470.   Ilaw-  bun  v.  Warren,  10  J.  E.  587,  595. 


Cli.  2.J  Of  Account.  91 

against  his  agent.1  But  where  there  is  no  mutuality  of  iealings,  or  but 
one  item  on  one  side,  and  no  discovery  is  required,  equity  has  no  jurisdic- 
tion.2 In  one  case,  where  a  defendant,  sued  at  law,  and  held  to  bail,  was 
about  to  leave  the  state,  with  his  bail,  and  leaving  no  property  behind, 
the  chancellor  granted  a  tie  exeat,  and  entertained  jurisdiction  upon  the 
head  of  account.  The  chancellor  remarked  upon  the  general  rule, 
saying,  that  to  sustain  a  bill  for  an  account,  there  must  be  mutual  de- 
mands, and  not  merely  payments  by  way  of  set-off.  A  single  matter 
cannot  be  the  subject  of  account.  There  must  be  a  series  of  transactions 
on  one  side  and  of  payments  on  the  other.  But  he  placed  his  interference 
in  that  case,  upon  the  necessity  of  the  case.  From  the  facts  charged  and 
sworn  to,  "  it  appears  to  me,"  said  the  chancellor,  "  that  the  remedy  in  the 
suit  pending  at  law  would  be  absolutely  defeated  without  the  interposition 
of  the  court  of  chancery.  The  remedy  sought  is  indispensable  to  prevent 
a  failure  of  justice,  and  this  makes  a  marked  difference  between  this  and 
ordinary  cases.  I  should  think  that  it  would  reflect  discredit  on  the  ad- 
ministration of  justice,  if  the  plaintiff  could  find  no  relief  from  the  im- 
pending'  mischief,  arising  from  the  failure  of  the  remedy  at  law,  by  the 
immediate  removal  of  the  defendant  and  his  bail."3 

Where  there  have  been  various  dealings  between  landlord  and  tenant, 
so  as  to  produce  an  account  too  complicated  to  be  taken  at  law,  and  the 
landlord  brings  an  ejectment  for  non-payment  of  rent,  the  tenant  may  file 
a  bill  before  judgment  at  law,  for  an  account,  on  the  footing  of  these  deal- 
ings, and  to  have  the  balance  apphed  to  the  rent  claimed  to  be  due,  and 
the  tenant  need  not  bring  in  the  rent  under  the  statute.4 

Lord  Cowper  decreed  an  account  in  the  case  of  copper  mines,  for  ore  dug 
and  for  timber  cut,  as  being  a  species  of  trade.5  And  Lord  Hardwicko 
said,  that  an  account  might  be  taken  of  a  collier)/,  on  the  like  ground.6 

In  cases  where  the  accounts  are  complicated,  and  where  the  final  set- 
tlement requires  the  accounts  of  more  estates  than  one  to  be  taken,  Chan- 
cellor Walworth  thought  that  the  surrogate's  court  had  no  jurisdiction, 
and  that  such  accounts  could  only  be  adjusted  in  a  court  of  equity.7  Com- 
plex and  intricate  accounts  are,  says  Ch.  J.  Marshall,  unfit  subjects 
for  an  examination  in  court,  and  ought  always  to  be  referred  to  a  commis- 
sioner, to  be  examined  by  him  and  reported,  in  order  to  a  final  decree.8 

1  Mackenzie  v.  Johnson,  4  Mad.  R.  374.        s  Bishop  of  Winchester  v.  Knight,  1 

*  Camming  v.  White,  4  Blackf.  356  ;    P.  Wins.  407. 

3.  P.,  10  Yerger,  179.  «  Story  v.  Lord  Windsor,  2  Atk.  630. 

*  Porter  v.  Spencer,  2  J.  Ch.  R.169, 171.        7  Foster  v.  Williams,  1  Paige,  542. 

*  1  Mad.  Ch.  Pr.  71.  O'Conner  v.  8  Dubourg  v.  United  States,  7  Petera, 
Bpaight,  1  Sili.  &  Lef.  305  et  seq.     Cor-  625. 

poration  of  Carlisle  v.  Wilson,  13  Ves.  270. 


9*2  Of  Account.  [Ch.  2. 

On  the  whole,  it  may  be  laid  down  as  the  general  rule,  deducible  from 
vhat  has  been  said,  that  equity  entertains  a  general  jurisdiction  in  mat- 
ters of  account,  growing  out  of  privity  of  contract,  where  there  are  mu- 
tual accounts  ;  where  the  accounts  are  complicated  and  intricate  ;  where 
the  accounts  are  all  on  one  side,  and  a  discovery,  or  a  writ  of  ne  exeat,  is 
prayed  and  granted  ;  where  the  taking  of  an  account  of  several  estates  is 
necessary ;  where  multiplicity  of  suits  renders  the  trial  difficult,  expen- 
sive and  unsatisfactory  at  law.  As  a  necessary  consequence,  where  the 
accounts  are  all  on  one  side,  and  no  other  relief  is  sought  than  to  recover 
vhe  amount,  the  remedy  at  law  is  adequate,  and  there  is  no  ground  for 
the  interposition  of  equity. 

In  matters  of  account,  it  often  becomes  a  material  inquiry,  where  par- 
tial payments  have  been  made,  and  there  are  several  debts  due  by  one 
party  to  the  other,  who  is  entitled  to  make  the  appropriation ;  and  how, 
in  case  the  parties  omit  to  declare,  at  the  lime,  their  intention,  the  law 
will  apply  the  payments. 

It  seems  to  be  settled,  that  where  money  is  paid  by,  or  received  for, 
a  debtor,  liable  to  the  same  creditor  for  distinct  debts,  by  the  creditor, 
the  debtor  may  appropriate  it  to  the  payment  of  whatever  debt  he 
pleases.  If  the  debtor  omit  to  appropriate  it,  the  creditor  may  apply 
it  to  the  satisfaction  of  whichever  demand  he  pleases.  If  neither  party 
makes  the  appropriation,  the  court  will  appropriate  it  according  to  the 
equity  of  the  case.  This  right  of  appropriation  exists  only  between  the 
original  parties.1 

"Where  a  creditor  has  two  demands  against  his  debtor,  and  the 
debtor  pays  a  sum  of  money,  without  directing  to  which  it  shall  be  ap- 
plied, if  the  amount  paid  exceed  one  of  the  demands,  and  is  exactly 
equal  to  what  remains  due  on  the  other,  it  will  be  considered  as  having 
been  paid  in  discharge  of  that  other.  This  was  put  by  the  court  upon  the 
ground  of  a  presumed  intention  of  both  the  parties.2 

This  subject  was  fully  discussed  in  the  court  of  errors,  in  one  case, 
•and  the  unanimous  opinion  of  the  court  was  pronounced  by  Ch.  J. 
Savage.3  The  case  came  up  on  appeal  from  the  court  of  chancery,  and, 
upon  this  branch  of  the  case,  the  chief  justice  said  :  "  There  is  no  doubt 
but  a  person  indebted  to  the  same  creditor  on  different  accounts,  or  de 


1  Gordon   v.   Hobart,    2   Story's  Rep.        "  Roberts  v.  Garnie,  3  Caines,  14. 
243.     Bossanquet  v.  Wray,  6  Taunt.  597.        3  Baker  v.  Stackpole,  9  Cowen,  43fi. 
Brooke  v  Euderby,2Br.  &Bing.  70.  Mann 
v,  March,  2  Caines'  Rep.  99. 


Ch.  2.]  Appropriation  of  Payments.  93 

mands,    making   payment,   may  apply  the  payment  to  any  demand  he 
pleases;  and  if  the  debtor  fails  to  make  the  application,  or  rather  appro- 
priation, tlie  creditor  may  make  such  appropriation  as  he  pleases.     But  if 
no  appropriation  is  made  by  either,  but  the  money  is  paid  and  received 
generally,  on  account,  how  does  the  law  make  the  appropriation  ?     In 
Godard  v.  Cox,  (2   Str.  1194,)  it  was  decided,  that  in  yuch  case  the 
creditor   has   the   right   of  applying,  where  there  is  no  dispute  about 
liability ;  but  if  the  debtor  is  liable  in  one  demand  personally,  and  iis 
another  as  executor,  which  depended  on  the  question  of  assets,  then  the 
creditor  cannot  make  the  application  to  such  demand.     The  case   of 
Devaynes  v.  Noble,  Clayton's  case,  (1  Merriv.  584  to  610,)  gave  rise  to 
much  discussion  as  to  the  rules  governing  the  application  of  indefinite 
payments.     Sir  William   Grant,   master  of  the  rolls,  examined  the  sub- 
ject at  much  length.     He  considered  the  rule  of  the  civil  law  to  be, 
that   the   election,    whether   by   debtor   or   creditor,    should    be    made 
at  the  time  of  payment ;  and  if  neither  applied  the  payment   when 
made,  then  the  law  made  the  payment  on  certain  rules  of  presumption ; 
and  in  applying  presumption,  the  presumable  intention  of  the  debtor  was 
first  considered."     This  was  upon  the  ground  that  the  debtor  had  the  first 
right  to  direct  the  appropriation.     Accordingly,  the  application  would  be 
made  to  the  most  onerous  debt,  as  for  example,  to  one  drawing  interest, 
rather  than  to  one  without  interest.     "  But  it  seems,  by  the  common  law, 
that  when  A.  has  a  demand  against  B.  and  C.  and  a  more  recent  de- 
mand against  B.   alone,  who  makes  an  indefinite  payment,  the  law  will 
appropriate  the  payment,  first  to  the  individaul  debt,  and  the  residue,  if 
any,  to  the  joint   debt ;  though,  if  both  debts  were  against  B.  alone, 
it  might  appropriate  the  payment  to  the  oldest  debt  first.     But  in  such 
case  the  creditor  cannot  wait  till  B.  becomes  further  indebted,  and  then 
appropriate  the  payment  to  the  future  debt,  leaving  the  previous  one 
unpaid.     In  no  case  can  a  creditor,  who  receives  payment  generally,  ap- 
propriate it  to  a  debt  created  after  the  payment,  leaving  a  prior  demand 
unpaid."1 

The  subject  of  appropriation  has  often  been  discussed  in  the  courts  of 
the  United  States,  where  sureties  of  a  public  officer  become  liable  at  differ- 
ent periods,  and  the  general  doctrine  was  stated  in  one  case,  that  the 
debtor  has  a  right,  if  he  pleases,  to  make  the  appropriation  of  payments  ; 
if  he  omits  it,  the  creditor  may  make  it ;  if  both  omit  it,  the  law  will  apply 
the  payments,  according  to  its  own  notions  of  justice.     It  is  certainly 

1  Baker  v.  Stackpole.  9  Cowcn,  436.  Peters  v.  Anderson,  5  Taunt.  596.  New- 
march  v.  Clay,  14  East,  239. 


Oi  Of  Account.  [Ch.  2. 

too  late  for  either  party  to  claim  a  right  to  make  an  appropriation,  after 
the  controversy  has  arisen,  and  a  fortiori,  at  the  time  of  trial.  In  cases 
where  long  and  running  accounts,  where  debits  and  credits  are  constantly 
occurring,  and  no  balances  are  otherwise  adjusted  than  for  the  mere  pur- 
pose of  making  rests,  the  court  held  that  payments  ought  to  be  applied 
to  extinguish  the  debts  according  to  the  priorit}^,  so  that  the  credits  are 
to  be  deemed  payments  pro  tanto,  of  the  debts  antecedently  due.1 

With  respect  to  the  time  when  the  appropriation  can  be  made  by  the 
parties,  although  the  decisions  are  somewhat  conflicting,  it  would  seem  that 
the  weight  of  common  law  authority  is  in  favor  of  the  civil  law  rule  ;  that  the 
appropriation  by  the  debtor  should  be  made  at  the  time  the  payment  is 
made,  and  if  he  omits  to  do  so,  the  creditor  should  make  it  either  then,  or 
within  a  convenient  time  after,  and  while  it  is  indifferent  to  the  del) tor  on 
which  account  it  is  made.2  This  seems  to  be  the  fair  deduction  from  the 
opinion  of  Cowen,  J.,  in  Pattison  v.  Hull,  where  he  has  extensively  re- 
viewed the  common  law  cases,  and  compared  them  with  the  civil  law. 

1  U.  States  v.  Kirkpatrick,  9  Wheaton,  765-773.  Moss  v.  Adams,  4  Iredell's  Eq. 
720,  737.  42.     Ayres  v.  Hawkins,  19  Vt,  26.   Milli- 

2  Pattison    v.    Hull,   9    Cowen,    747,    kin  v.  Tufts,  31  Maine  E.  497. 

[It  may  not  be  out  of  place  here  to  recur  to  the  civil  law  rule,  on  the  subject  of 
imputation  of  payments,  as  the  term  appropriation  of  payments,  is  expressed  in  that 
system.  The  text  of  tbe  civil  law  on  this  subject  is  thus  translated  by  Strahan  from 
the  French  of  Domat,  Civil  Law. (a) 

"1.  If  a  debtor  who  owes  to  a  creditor  different  debts,  hath  a  mind  to  pay  one  of 
them,  be  is  at  liberty  to  acquit  whichever  of  them  he  pleases,  and  the  creditor  cannot 
refuse  to  receive  payment  of  it.  For  there  is  not  any  one  of  them  which  the  debtor 
may  not  acquit,  although  he  pay  nothing  of  all  the  other  debts  ;  provided  he  acquit 
entirely  the  debt  which  he  offers  to  pay."  This  is  precisely  the  common  law,  as 
the  cases  already  cited  establish. 

"2.  If,  iu  the  same  case  of  a  debtor  who  owes  several  debts  to  one  and  the  same 
creditor,  the  said  debtor,  makes  a  payment  to  him,  without  declaring  at  the  same 
time  which  of  the  debts  he  has  a  mind  to  discharge;  whether  it  be  that  he  gives 
him  a  sum  of  money  indifferently  in  part  payment  of  what  he  owes  him,  or  that 
there  be  a  compensation  of  debts  agreed  on  between  the  creditor  and  debtor,  or  in 
some  other  manner;  the  debtor  will  have  always  the  same  liberty  of  applying  the 
lent  to  whichever  of  the  debts  he  has  a  mind  to  acquit.  But  if  the  creditor 
were  to  apply  the  payment,  he  could  apply  it  only  to  that  debt  which  he  himself 
would  discharge  in  the  first  place,  in  case  he  were  the  debtor.  For  equity  requires 
Jiat  he  should  act  in  the  affair  of  his  debtor  as  he  would  do  in  his  own.  And  if,  for 
example,  in  the  case  of  two  debts,  one  of  them  were  controverted  and  the  other  clear, 
the  creditor  could  not  apply  the  payment  to  the  debt  which  is  contested  by  the 

(a)  Domat,  dishing':;  ed.  905  ei  seq 


Ch.  2. J  Appropriation  of  Payments.  95 

The  doctrine  of  the  civil  law,  with  respect  to  this  subject,  turns  upon 
the  intention  of  the  debtor,  either  actual,  or  implied  or  presumed.  To 
him  belongs  the  right  of  making  the  appropriation,  in  the  first  instance, 
and  which  right  he  must  exercise  at  the  time  of  the  payment,  whether  it 
be  a  payment  in  money,  or  any  thing  else  agreed  to  be  accepted  in  pay- 
ment. If  the  debtor  fails  to  make  the  appropriation,  the  civil  law  permits 
the  creditor  to  apply  the  payment,  but  he  must  exercise  the  right  at  the 
time  payment  is  made,  and  on  the  failure  of  the  debtor  to  designate  to 
which  account  he  desires  it  to  be  applied.  In  doing  this,  the  civil  law 
treats  the  creditor  as  acting  in  behalf  of  the  debtor,  and  requires  him  to 
apply  the  payment  to  that  debt  which  he  himself  would  discharge  in  the 


debtor."     The  rule  adopted  by  Chief  Justice  Lee  in  the  case  already  cited,  is  sub- 
stantially according  to  the  foregoing  rule. (I) 

"  3.  In  all  the  cases  where  a  debtor  owing  several  debts  to  one  and  the  same  cred- 
itor is  found  to  have  made  several  payments,  of  which  the  application  has  not  been 
made  by  the  mutual  consent  of  the  parties,  and  where  it  is  necessary  that  it  be  regu- 
lated either  by  a  court  of  justice  or  by  arbitrators  ;  the  payments  ought  to  be  ap- 
plied to  the  debts,  which  lie  heaviest  on  the  debtor,  and  which  it  concerns  hira  most 
tn  discharge.  Thus,  a  payment  is  applied  rather  to  a  debt  of  which  the  non-pay 
inent  would  expose  the  debtor  to  some  penalty,  and  to  costs  and  damages,  or  in  the 
payment  of  which  his  honor  might  be  concerned,  than  to  a  debt  of  which  the  non- 
payment would  not  be  attended  with  such  consequences.  Thus,  a  payment  is  applied 
to  the  discharge  of  a  debt  for  which  a  surety  is  bound,  rather  than  to  acquit  what 
t>e  debtor  is  singly  bound  for  without  giving  any  security;  or  to  the  discharge  of 
what  he  owes  in  his  own  name,  rather  than  of  what  he  stands  engaged  for  as  surety 
for  another.  Thus,  a  payment  is  applied  to  a  debt  for  which  the  debtor  has  given 
pawns  and  mortgage-,  rather  than  to  a  debt  due  by  a  simple  bond  or  promise  ;  rath- 
debt  of  which  the  term  is  already  come,  than  to  one  that  is  not  yet  due  ;  or 
to  an  old  debt  before  a  new  one;  and  rather  to  a  debt  that  is  clear  and  legal,  than 
to  one  that  is  in  dispute ;  or  to  a  pure  and  simple  debt,  before  one  that  is  condition- 
al." Every  position  in  the  foregoing  is  in  substance  sustainad  by  authorities  undei 
the  common  law.(r) 

(b)  Godard  v.  Cox,  -1  Str.  1194.  But  see  Logan  v.  Mason,  0  Watts  A-  Set--.  'J,  where  it  is 
said  that  the  provisions  of  the  Roman  law,  which,  in  the  application  of  a  payment,  re 
the  creditor,  when  t lie  right  has  devolved  <m  him  by  the  laches  of  the  debtor,  to  consult  the 
debtor's  interest  in  preference  to  his  own,  has  not  been  adopted  as  part  of  the  common  law. 
The  cue  of  Ayers  v.  Hawkins,  10  Vt.  26,  is  more  in  conformity  to  the  civil  law;  and  to  the 
same  effeel  is  Dows  v.  Morewood,  10  Barb.  1 83  ;  Hunter  v.  Ostcrhout,  11  id.  34  ;  Seymour 
fin,  id.  80.  And  see  (.pinion  of  Chancellor  AVal worth,  in  Stone  v.  Seymour,  15 
■^"end.  29,  disapproving,  in  part,  <>f  die  Etonian  rule. 

(c.)  Bussey  v.  Grant,  i.0  Humph.  238.  Heyward  v.  Lomax,  1  Vern.  24.  Marryatts  v. 
White,  2  Stark.  1!.  101.  Bacon  v.  Brown,  1  Bibb,  384.  Gwinn  v.  Whittaker,  I  Ilarr.  & 
John.  754.     Postmaster  Gen.  v.  N-rrell.  Gilp.  106.  Williams,  2  Vt.  288.    U.  S.t 


96  Of  Account.  [Oh.  2 

first  place,  in  case  be  were  the  debtor.1  It  is  denied,  by  some  courts,  that 
this  principle  has  been  adopted  by  the  common  law.2     The  rule,  however, 

1  See  ante.  Per  "Walworth,  in  Stone  v.  Seymour,  15 

2  Logan  v.  Mason,  6  Watts  &  Serg.  9.    Wend.  29. 

"4.  When  a  payment  made  to  a  creditor  to  whom  several  debts  are  due,  exceeds 
the  debt  to  which  it  ought  to  be  applied,  the  surplus  ought  to  be  applied  to  the  dis- 
charge of  the  debt  which  follows,  according  to  the  order  explained  in  the  preceding 
article,  unless  the  debtor  makes  another  choice." 

"  5.  If  a  debtor  makes  a  payment  to  discharge  debts  which,  of  their  nature,  bear 
interest,  such  as  that  of  a  marriage  portion,  or  what  is  due  by  virtue  of  a  contract 
of  sale,  or  the  same  be  due  by  a  sentence  of  a  court  of  justice,  and  the  payment  be 
not  sufficient  to  acquit  both  the  principal  and  the  interest  due  thereon,  the  payment 
will  be  applied,  in  the  first  place  to  the  discharge  of  the  interest,  and  the  overplus 
to  the  discharge  of  a  part  of  the  principal  sum." 

"  6.  If  in  the  cases  of  the  foregoing  articles  the  creditor  had  given  an  acquittance 
in  general  for  principal  and  interest,  the  payment  would  not  be  applied  in  an  equal 
proportion  to  the  discharge  of  a  part  of  the  principal,  and  of  a  part  of  the  interest; 
but,  in  the  first  place,  all  the  interest  due  would  be  cleared  off,  and  the  remainder 
would  be  applied  to  the  discharge  of  the  principal." 

The  doctrine  of  the  preceding  paragraphs  is  perfectly  naturalized  by  cases  of  the 
most  approved  authority. (d) 

"  7.  "When  a  debtor  obliging  himself  to  a  creditor  for  several  causes  at  one  ai  d 
the  same  time,  gives  him  pawns  or  mortgages,  which  he  engages  for  the  security  of 
all  the  debts ;  the  money  which  is  raised  by  the  sale  of  the  pawns  or  mortgages, 
will  be  applied  in  an  equal  proportion  to  the  discharge  of  every  one  of  the  deb  ,s. 
But  if  the  debts  were  contracted  at  divers  times,  upon  the  security  of  the  sarae 
pawns  and  mortgages,  so  as  that  the  debtor  had  mortgaged  for  the  last  debts,  what 
should  remain  of  the  pledge  after  payment  of  the  first,  the  moneys  arising  from  the 
pledges,  would  in  this  case  be  applied,  in  the  first  place,  to  the  discharge  of  the  debt 
of  the  oldest  standing.  And  both  in  the  one  and  the  other  case,  if  any  interest  be 
due  on  account  of  the  debt  which  is  to  be  discharged  by  the  payment,  the  same  will 
be  paid  before  any  part  thereof  be  applied  to  the  discharge  of  the  principal." 

This  paragraph  contains  the  peculiar  doctrine  of  priority  of  pledges,  and  follows 
out  the  principles  already  stated.  The  proposition  that  a  payment  on  pawns,  or 
mortgages  for  simultaneous  debts,  shall  be  distributed  between  the  debts,  has  been 
in  principle  decided  in  the  English  courts,  and  in  the  courts  of  this  state.]  (e) 

Kirkpatrick,  9  Wheat,  720.  Frazier  v.  Hyland,  1  H.  &  J.  98.  Alston  v.  Conter,  id.  351 
Fairchild  v.  Holly,  10  Conn.  175.     Hilton  v.  Burley.  2  N.  Hamp.  193. 

(d)  State  of  Connecticut  v.  Jackson,  1  J.  Ch.  C.  17.  Chase  v.  Box,  2  Freem.  261 
Stoughton  v.  Lynch,  2  J.  Ch.  R.  209.  Frazier  v.  Hyland,  1  Eferr.  &  John.  98.  Peebles  v 
Gee,  1  Dev.  341.  Spicer  v.  Harnott,  8  Watts  &  Serg.  17.  Bond  v.  Jones,  8  Sm.  &  Mar 
Bhall,308.    Jenks  v.  Alexander,  11  Paige,  619.     Righter  v.  Stall,  3  Sand.  Ch.  R.  608. 

(c)  Perry  v.  Roberts,  2  Ch.  Cas.  84;  S.  C,  1  Vein.  34.  Dovs  v.  Morewood,  10  Barb 
183.     Pattison  v.  null,  9  Cowen,  747. 


Ch  2.J  Appropriation  of  Payments.  97 

goes  but  little  further  than  other  courts  maintain  the  duty  of  the  cred- 
itor in  such  cases  to  be,  namely,  that  he  should  act  with  good  faith 
towards  the  debtor.  Thus,  in  a  recent  case,  it  was  held  that,  if  a  debtor, 
owing  several  demands  to  his  creditor,  makes  a  general  payment  and  neg- 
lects to  direct  its  application,  the  right  of  designation  belongs  to  tho 
creditor ;  yet  he  must  make  an  application,  to  which  the  debtor  could 
not  justly  or  reasonably  object.  Therefore,  where  the  demands  consisted 
of  three  notes,  all  of  which  were  barred  by  the  statute  of  linrititti  tns, 
and  the  debtor  made  a  general  payment,  it  was  held  that  the  creditor 
might  apply  it  upon  which  notes  he  pleased,  and  that  he  might  indorse 
it,  if  he  so  chose,  upon  the  largest  note,  although  it  was  subsequent,  in 
date,  to  the  others,  and  that  the  effect  would  be  to  take  the  note,  upon 
which  the  application  was  made,  out  of  the  statute  of  limitations  ;  but  that 
he  could  not  divide  the  payment  among  all  the  notes,  indorsing  a  part 
on  each,  and  claim  that  all  were  thereby  taken  out  of  the  operation  of 
the  statute.1 

In  Newhampshire  it  has  been  decided,  that  if  payments  have  been 
made  on  account  of  illegal  sales,  (for  example,  for  spirituous  liquors  sold 
without  license,)  the  purchaser  cannot  afterwards  rescind  them,  nor  insist 
upon  their  being  applied  to  other  and  legal  charges.  The  general  rule  is 
there  stated  thus  :  a  debtor,  paying  money  to  a  creditor,  who  has  several 
claims  against  him,  may  direct  the  application  of  the  payment  to  which 
claim  he  pleases.  If  the  debtor  makes  no  sucli  application,  the  creditor 
may,  at  the  time,  apply  it  to  any  demand  then  due  and  payable,  and  which 
is  a  lawful  claim.  Where  neither  of  the  parties  makes  the  application, 
the  law  will,  where  there  is  no  particular  equity,  or  reason  for  a  different 
course,  apply  the  payment  to  the  earliest  debt.  Whether  the  creditor  can 
direct  the  application  at  any  other  time  than  at  the  time  of  payment, 
the  court  did  not  decide,  and  left  under  a  quere.8  In  New-York  it  has 
been  held,  in  one  case,  that  the  creditor  is  not  bound  to  make  an  immedi- 
ate decision,  but  will  be  allowed  a  reasonable  time  to  decide  to  which 
account  or  debt  he  will  place  it.3  But  Chancellor  Walworth,  in  an  earlier 
case,4  while  delivering  the  judgment  of  the  court  of  errors,  held,  that  the 
creditor  should  make  the  appropriation,  on  receiving  the  payment,  and 
on  the  default  of  the  debtor  to  direct  the  application.  This-  is  in  con- 
formity to  the  civil  law,  and  is  the  more  reasonable  rule. 

That  a  creditor  cannot  make  the  appropriation  of  a  payment  after  a 

1  Avers  v.  Hawkins,  19  Vt.  26.  3  Allen  v.  Culver.  3  Denio,  291.     Coll 

3  Caldwell   v.   Wentworth,    14  K  II.     on  PartDership,  322. 
i31.  *  Stone  v.  Seymour,  15  '"Vend.  23. 

Eq.  Jur.  13  -*'' 


98  Of  Account.  [Cli.  2. 

controversy  has  arisen  thereon,  between  himself  and  the  debtor,  is  quite 
reasonable,  and  has  been  settled.1  He  should  either  make  it  at  the  timo 
of  the  payment,  on  the  failure  of  the  debtor  to  apply  it,  as  held  by  Chan- 
cellor Walworth,  (supra,)  or,  at  least,  before  the  rights  of  the  parties  have 
been  changed. 

Where  neither  party  has  made  the  application,  the  law  nsually  mates 
it  to  the  oldest  debt,  and  also  applies  it  to  the  debt  from  which  it  will  be 
most  beneficial  to  the  debtor  to  be  relieved  ;  as,  for  example,  to  accept- 
ances for  which  an  instrument  in  the  nature  of  a  mortgage  or  pledge  is 
given.3 

In  like  manner,  payments  made  on  account  of  rent  generally,  will,  in 
the  absence  of  any  direction  by  the  tenant,  and  any  agreement  of  the 
parties,  be  applied  by  the  law  on  the  rent  due  at  the  time,  and  not  on 
the  rent  then  accruing.3 

Chief  Justice  Marshall,  in  an  early  case  before  the  supreme  court  of 
the  United  States,  expressed  dissatisfaction  with  the  rule  of  the  civil  law, 
which  makes  the  application  in  a  manner  most  favorable  to  the  del  '  in 
case  both  the  debtor  and  creditor  omitted  to  make  the  application  of  a 
payment.4  He  said  :  "  Where  a  debtor  fails  to  avail  himself  of  the 
power  which  he  possesses,  in  consequence  of  which  that  power  devolves 
on  the  creditor,  it  does  not  appear  unreasonable  to  suppose  that  he  is 
content  with  the  manner  in  which  the  creditor  will  exercise  it.  If  neither 
party  avails  himself  of  his  power,  in  consequence  of  which  it  devolves  on 
the  court,  it  would  seem  reasonable  that  an  equitable  application  should 
be  made.  It  being  equitable  that  the  whole  debt  should  be  paid,  it  can- 
not be  inequitable  to  extinguish,  first,  those  debts  for  which  the  security 
is  most  precarious.77  In  a  case  in  the  court  of  errors,  in  the  state  of 
New- York,  Chancellor  Walworth,  who  delivered  the  prevailing  opinion, 
agreed  that  the  foregoing  doctrine  of  Chief  Justice  Marshall  is  the  true 
princir ;c.s  He  admitted  that,  in  Spain,  France,  and  Holland,  the  rule  of 
the  civil  law  prevails,  requiring  the  payments  to  be  applied  in  that  way 
which  is  most  beneficial  to  the  debtor,  where  one  debt  is  more  onerous 
than  the  other.     Such  too  is  the  Code  Napoleon,  article  1256.     By  the 

1  MiHikin  v.  Tufts,  31  Maine,  497.  3  Ilunter  v.  Osterhout,    11  Baro.   33 

a  Gwin  v.  Whittaker,  1  liar.  &  J.  754.  Allen  v.  Culver,  3  Denio,  291. 

McTavish  v.  Carroll.  1  Maryland  Ch.  De-  4  Field  v.  Holland,  6  Cranch,  8,  27. 

onions,  ICO.  Bussey  v.  Gant,  10  Humph.  5  Stone   v.   Seymour,    15    "VVend.    29; 

238.      Truscott    v.   King.    2   Seld.    147.  S.  P.,  Jones  v.  Kilgore,  2  Richardson'! 

Daws  v.  Morewood,  10  Barb.  183.     Pat-  Eq.  63.    Baine  v.  Williams,  10  S.  &  M 

tifion    v.  Hull,  9  Cowen,  747,  and  ca^es  113. 

cited  under  note,  ante,  p.  95. 


CL  2.]  Appropriation  of    Payments.  99 

civil  code  of  Louisiana,  no  preference  is  given  on  account  of  priority  of 
date  ;  but  when  both  debts  are  not  of  a  like  nature,  the  imputation  is 
made  to  the  less  burdensome  ;  and  if  all  things  are  equal,  it  is  made  pro- 
portionally.' By  the  law  of  Scotland,  the  creditor  is  allowed  to  make 
the  application  which  is  most  beneficial  to  himself.  The  rule  adopted 
there,  has  in  view  the  interest  of  the  creditor  more  than  that  of  the  debtor, 
except  that  a  debt  in  judgment  must  be  first  paid.  Also  when  a  third 
person  is  a  surety  for  one  of  the  debts  the  payment  is  applied  pro  rata  ,* 
the  interest  of  the  surety  counterbalancing  that  of  the  creditor.  The 
chancellor  admits,  that  in  England  and  in  the  United  States,  where  the  com- 
mon law  prevails,  there  is  much  conflict  in  the  decisions,  as  to  the  prin- 
ciples upon  which  the  court  is  to  make  the  application,  where  the  right  is 
not  exercised  by  the  creditor  or  debtor.2 

In  the  same  case,  the  same  learned  chancellor,  speaking  of  the  applica- 
tion of  indefinite  payments  where  the  creditor  has  different  claims  against 
his  debtor,  says,  that  some  of  the  fundamental  principles  of  the  civil  law 
appear  to  have  been  adopted  every  where,  and  to  admit  of  no  doubt. 
(1.)  If  both  debts  are  due  at  the  time  of  the  partial  payment,  the  debtor 
Is  at  liberty  to  apply  the  payment  to  which  he  pleases,  if  his  intention  is 
manifested  at  the  time  of  the  payment;  subject  to  this  restriction,  how 
ever,  that  the  creditor  is  not  obliged  to  receive  a  partial  payment  of  any 
particular  debt,  of  which  the  whole  is  due  at  the  time  the  offer  of  pay- 
•rnent  is  made,  (2.)  When  the  debtor  neglects  to  manifest  his  intention, 
as  to  the  application  of  the  payment,  at  the  time  it  is  mad<^  the  creditor 
may,  at  the  time  he  receives  the  money,  apply  it  to  which  debt  he  pleases, 
unless  the  debtor  objects;  the  creditor  manifesting  his  intention  at  the 
time,  either  in  the  acquittance  which  he  gives,  or  in  some  other  way. 
(I.)  If  a  partial  payment  is  made,  on  account  of  debts,  one  part  of  which 
debts  consists  of  principal,  and  another  of  the  interest,  so  much  of  the 
payment  as  is  necessary  to  satisfy  the  interest,  or  arrears  then  due,  shal" 
be  first  applied  for  that  purpose,  and  the  residue  only  shall  go  to  reduce 
the  amount  of  the  principal  debt.  These  rules  prevailed  in  the  Roman 
law,  and  are  now  the  settled  law  of  France,  Spain,  Holland,  Scotland, 
England  and  the  United  States.3  A  fourth  principle  appears  to  be 
equally  well  established,  to  wit,  where  no  application  of  the  payment  is 
made  by  the  debtor,  or  with  his  assent,  at  the  time  it  is  received,  and 
there  is  an  existing  indebtedness  to  the  amount  of  such  payment,  it  shall 


1  Civil  Code  of  Louisiana,  art.  2162.         has  collected  various  authorities  on  the 
5  Stone  v.  Seymour,  15  AYend.  30.  above  points. 

3  M.  23,  24,  where  the  late  chancellor 


100  Of  Account.  [Ch.  2 

be  applied  to  that ;  and  neither  the  creditor  or  the  court  shall  apply  such 
payment  to  a  debt  which  was  not  then  due  and  payable.  And  if  the  pay- 
ment is  made  upon  a  demand  which  draws  interest,  and  neither  the  prin- 
cipal or  the  interest  has  yet  become  due,  it  shall  be  applied  ratably,  so 
as  to  extinguish  the  interest  to  that  time  upon  so  much  of  the  principal 
as  is  discharged  by  the  payment.1 

The  points  on  which  there  is  the  greatest  conflict  of  opinion  among  the 
courts,  in  this  country,  are  as  to  the  time  when  the  creditor,  on  the 
laches  of  the  debtor,  is  permitted  to  make  the  appropriation  ;  that  is, 
whether  he  must  make  it  at  the  time  he  receives  the  payment,  and  indi- 
cate his  appropriation  to  the  debtor  at  the  time ;  or  whether  he  may  wait 
a  reasonable  time,  before  making  the  application  ;  or,  whether  he  may 
lie  by,  until  a  controversy  has  arisen  between  the  parties,  and  then  desig 
nate  the  demand  to  which  the  payment  shall  be  applied.  Another  point 
in  Avhich  there  is  a  controversy,  is  as  to  the  character  in  which  the  credi- 
tor acts,  when  on  failure  of  the  debtor  to  direct  the  appropriation,  he  ex- 
ercises the  admitted  right  of  directing  it  himself;  that  is,  whether,  in 
this  case,  he  acts  for  his  own  interest  exclusively,  and  may  prefer  his  own 
interest  to  that  of  the  debtor ;  or  whether  he  is  bound  to  act  with  good 
faith  towards  the  debtor,  and  so  exercise  his  own  right  as  not  to  prejudice 
the  rights  of  the  debtor ;  or  whether  he  is  bound  to  exercise  the  golden 
rule,  and  do  by  the  debtor,  in  making  the  appropriation,  as  he  would  de- 
sire others  to  do  for  himself  under  similar  circumstances. 

There  are  respectable  authorities  in  this  country  for  each  of  the  fore- 
going positions.  But  it  is  believed  that  the  tendency  of  judicial  opinion, 
in  this  country,  is  towards  the  equitable  rules  of  the  civil  law.  In  most 
instances  those  rules  have  been  adopted  by  common  consent,  and  are  per- 
fectly naturalized  in  the  common  law.  Where  they  have  not  been,  in 
terms,  adopted,  the  preponderance  of  authority  is  in  their  favor.  In  the 
present  state  of  the  law,  the  rules  on  this  subject  cannot  be  laid  down 
more  definitely  than  they  have  been  in  the  text.  The  studious  reader 
will  consult  the  cases  already  cited,  and  those  which  are  appended  in  the 
subjoined  note.2 

1  Stone  v,  Seymour,  15  Wend.  23,  24,  Higgison,  1  Mason,  323.     Gwin  v.  Whit- 

and  Williams  v.  Honghtaling,  3  Cow.  86.  taker,  1  Har.  &  J.  754.     Briggs  v.  Wil- 

*  Reynolds  v.  McFarlane,  1  Overt.  488.  liams,  2  Vt.  283.     Frazier  v.  Hyland,  1 

Bacon  v.  Brown,  1  Bibb,  334.     Postmas-  Har.  &  J.  98.     Alstan  v.  Conter,  4  id. 

ter  General  v.  Norvell,  Gilp.  106.    Huger  351.     Faircbild  v.  Ilolly,  10  Conn.  175. 

v.  Bosquet,  1  Bay,  497.     Harker  v.  Con-  Postmaster  Gen.  v.  Furber,  4  Mason,  332. 

rad.   12  S.  &  R.  301.     United  States  v.  Blackstone  Bank  v.  Hill,  10  Pick.  129. 

Ri;k Patrick    9  Wheat.  720.     Cramer  v.  Hall  v.  Marston,  17  Mass.  575.     Gilchrist 


Ch.  2.J 


Appropriation  of  Pa\ments. 


101 


In  the  case  of  partnership,  where  there  has  been  a  change  of  the  firm 
by  a  dissolution,  by  death  or  otherwise,  it  becomes  important  to  ascertain 
the  principle  on  which  indefinite  payments  are  to  be  applied.  In  one 
case,  Bayley,  J.,  after  stating  the  general  rule,  about  which  there  is  no 
dispute,  says,  that  when  one  of  several  partners  dies,  and  the  partnership 
is  in  debt,  and.  the  surviving  partners  continue  their  dealings  with  a 
particular  creditor,  and  the  latter  joins  the  transactions  of  the  old  and  the 
new  firm  in  one  entire  account,  then  the  payments,  made  from  time  to 
time  by  the  surviving  partners,  must  be  applied  to  the  old  debt.1  In 
that  case,  it  is  to  be  presumed  that  all  the  parties  have  consented  that 
it  should  be  considered  as  one  entire  account,  and  that  the  death  of  one  of 
the  partners  has  produced  no  alteration  whatever.  In  such  case,  in  a  cur 
rent  account  as  between  banker  and  customer,  the  law  makes  an  appropri 
ation  according  to  the  items  of  the  account,  the  first  item  on  the  debit  side 
of  the  account  being  discharged,  or  reduced  by  the  first  item  on  the  credit 
side.     These  general  principles  were  fully  established  and  enforced  by 


v.  Ward,  4-  Mass.  692.  Bonaffe  v.  Wood- 
bury, 12  Pick.  463.  Hussey  v.  Manu.  and 
Mech.  Bank,  10  id.  415.  Taylor  v.  Sandi- 
ford,  7  Wheat.  13.  Black  v.  Schooles,  2 
McCord,  292.  Martin  v.  Draker,  5  Watts, 
544.  Mitchell  v.  Dall,  2  Har.  &  Gill, 
159 ;  S.  C,  Gill  &  John.  361.  McDonald 
v.  Picket,  2  Bailey,  617.  Peed  v.  Board- 
man,  20  Pick.  441.  Brewer  v.  Knapp,  1 
id.  332.  Brady  v.  mil,  1  Miss.  315.  Alex- 
ander v.  Patten,  4  Cranch,  316.  Smith 
v.  Souven,  1  McCord,  308.  Blinn  v.  Ches- 
ter, 5  Day,  166.  Dorsey  v.  Ganaway,  2 
liar.  &  J.  402.  Emery  v.  Tichout,  13  Vt. 
15.  Oliver  v.  Phelps,  1  Spencer,  180. 
McFarland  v.  Lewis,  2  Scam.  344.  White 
v.  Trumbull,  3  Green,  314.  Carson  v. 
Hill,  1  McMullan,  76.  Sellick  v.  Turn- 
pike. Co.  13  Conn.  453.  Rosseau  v.  Call, 
14  Vt.  83.  Robinson  v.  Doolittle,  12  id. 
246.  Starrett  v.  Barber,  7  Shipherd,  457. 
Arnold  v.  Johnson,  1  Scam.  196.  Merri- 
mack Co.  Bank  v.  Brown,  12  N.  IT.  320. 
Myers  v.  United  States,  1  McLean,  493. 
Howland  v.  Rench,  7  Blackf.  236.  Rack- 
ley  v.  Pearce,  1  Kelly,  241.  Randall  v. 
Pari-imore,  1  Branch,  409.    Boody  v.  The 


TJ.  S.  1  Woodb.  &  M.  150.  Rood  v.  Jones, 
8  S.  &  M.  368.  Upham  v.  Lefavour,  11 
Met.  174.  Jenck  v.  Alexander,  11  Paige, 
619.  Moss  v.  Adams,  4  Iredell's  Eq.  42. 
Jones  v.  Kilgore,  2  Rich.  Eq.  63.  Baine 
v.  Williams,  10  S.  &  M.  113.  United 
States  v.  Bradbery,  Davies,  146.  Ban- 
croft v.  Dumas,  21  Vt.  456.  Dulles  v. 
De  Forrest,  19  Conn.  190.  Bailey  v. 
Wynkoop,  5  Gil  in  an,  449.  Sawyer  v. 
Tappan,  14  K  II.  352.  Seymour  v.  Mar- 
vin, 11  Barb.  80. 

The  foregoing  are  American  cases. 
Many  of  the  English  cases  are  cited  al- 
ready, in  addition  to  which,  see  Mills  v. 
Fonkes,  7  Scott,  444;  S.  C,  Bingham's 
N.  C.  455,  repudiating  the  rule  of  the 
civil  law,  which  applies  a  payment  to  the 
more  burdensome  debt,  when  the  parties 
have  omitted  to  make  the  application. 
Peters  v.  Anderson,  5  Taunt.  596.  Bos- 
sanquet  v.  Wray,  6  id.  597.  Clayton's 
case,  1  Meriv.  572.  Chitty  v.  Naish,  2 
Dowl.  P.  C.  511.  Brazier  v.  Bryant,  id. 
477.  Goddard  v.  Hodges,  1  C.  &  M.  33. 
Cruickshanks  v.  Rose,  1  M.  &  Rob.  100. 

1  Simpson  v.  Ingham,  2  B.  &  Cress.  65 


102  Of  Account.  \Ch.% 

Sir  William  Grant,  in  Clayton's  case,1  "which  was  a  case  decided  upon 
great  consideration,  and  is  an  authority  of  great  weight."2  There,  the 
claim  of  Clayton  against  the  estate  of  the  deceased  partner  Devaynes, 
under  ai)  account  current  with  the  house  of  Devaynes  &  Co.,  was  limited 
and  adjusted  according  to  the  principles  above  stated.  In  that  case  Sir 
^Yilliam  Grant  says  :  "  This  is  the  case  of  a  banking  account,  where  all 
the  sums  paid  in,  form  one  blended  fund,  the  parts  of  which  have  no  longer 
any  distinct  existence.  There  is  no  room  for  any  other  appropriation, 
than  that  which  arises  from  the  order  in  which  the  receipts  and  pa3?ments 
take  place,  and  are  carried  into  the  account.  Presumably  it  is  the  sum 
iirst  paid  in  that  is  first  drawn  out.  It  is  the  first  item  on  the  debit  side 
of  the  account,  that  is  discharged  or  reduced  by  the  first  item  on  the  credit 
side.  The  appropriation  is  made  by  the  very  act  of  setting  the  two  items 
against  each  other.  Upon  that  principle,  all  accounts  current  are  settled, 
and  particularly  cash  accounts.  When  there  has  been  a  continuation 
of  dealings,  in  what  way  can  it  be  ascertained  whether  the  specific  bal- 
ance, due  on  a  given  day,  has  or  has  not  been  discharged,  but  by  exam- 
ining whether  payments  to  the  amount  of  the  balance  appear  by  the 
account  to  have  been  made?  You  are  not  to  take  the  account  back- 
wards, and  strike  the  balance  at  the  head,  instead  of  the  foot  of  it.  A 
man's  banker  breaks,  owing  him  on  the  whole  account  a  balance  of  £1000. 
It  would  surprise  one  to  hear  the  customer  say  :  I  have  been  fortunate 
enough  to  draw  out  all  that  I  paid  in  during  the  last  four  years ;  but 
there  is  £1000,  which  I  paid  in  five  years  ago,  that  I  hold  myself  never 
to  have  drawn  out ;  and,  therefore,  if  I  can  find  any  body,  who  was  answer-' 
able  for  the  debts  of  the  banking  house,  such  as  they  stood  five  years 
ago,  I  have  a  right  to  say,  that  it  is  that  specific  sum  which  is  still  due 
to  me,  and  not  the  £1000  I  paid  in  last  week."3 

The  doctrine  of  Sir  William  Grant,  in  Clayton's  case,  (supra,)  was 
apparently  approved  by  Savage,  Ch.  J.,  in  Baker  v.  Stackpole,  (supra,)4 
by  Judge  Story,  in  his  Treatise  on  Equity  Jurisprudence,5  and  by  the 
superior  court  of  errors  of  Connecticut.6  In  the  case  of  Fairchild  v.  Hol- 
ly and  others,  one  of  the  defendants,  a  dormant  partner,  withdrew  from 
the  concern,  the  former  then  being  indebted  to  the  plaintiff,  on  a  running 

1  1  Merivale,  572.  4  Russell's   R.   154.     Wilder  v.  Keeler, 

*  Per  Abbott,  J.  in  Bodenham  v.  Pur-  3  Pai^e,  167. 
chase,  2  Barn.  &  Aid.  46.  4  Baker  v.  Stackpole,  9  Cowen,  436. 

s  Sir  William  Grant,  in  Clayton's  case,        6  Story's  Eq.  Jur.  §  459,  e. 

1  Meriv.  608, 609.  Bodenham  v.  Purchase,        e  Fairchild  v.  Holly,  10  Conn.  175, 182. 

2  Barn.  &  Aid.  39.   Pemberton  v.  Oakes, 


Ch.  2.j  Appropriation  of  Payments.  103 

account  r.i  iebits  and  credits.  After  the  withdrawal  of  the  dormant  part- 
ner, the  business  of  the  defendants  was  conducted  in  the  same  ostensible 
manner,  by  the-  same  agent,  and  no  rest  or  settlement  was  made  in  the 
accounts.  Tb.j  payments,  however,  made  subsequent  to  the  withdrawal 
of  the  partner,  if  applied  to  the  old  account,  would  extinguish  it,  and  leave 
a  small  sum  to  be  applied  on  the  account  of  the  new  firm.  The  question 
was,  whether  those  subsequent  payments,  not  having  been  applied  at 
the  time  by  Uie  parties,  should  be  appropriated  by  the  law  to  the  whole 
account,  an<i  ihus  go  to  extinguish  the  old  account ;  or  whether  the  account 
should  be  atated  of  debits  and  credits,  as  the  account  stood  when  the 
partner  w/lhdrew,  and  the  payments,  subsequent  to  the  withdrawal,  be 
applied  to  the  debts  which  had  subsequently  accrued.  The  former  was 
held  to  be  the  true  rule  in  this  case ;  the  account  of  the  plaintiff  was 
whole  and  unbroken.  No  rest  was  made,  or  balance  struck.  The  charges 
were  made  in  the  same  manner,  and  against  the  same  persons,  and  the 
business  conducted  by  the  same  agent.  The  case  was  not  distinguishable 
from  Brooke  v.  Enderby  et  al.,1  and  was  in  accordance  with  the  principles 
approved  in  Clayton's  case,  and  Simpson  v.  Bingam,  (supra.) 

The  principles  which  appty,  in  case  of  the  death  or  the  retiring  of  a 
partner,  are  the  same  on  the  accession  of  a  new  partner.  If  the  money 
paid  be  the  property  of  the  mere  partnership,  it  will  be  applicable  to  the 
payment  of  the  debts  of  that  partnership  alone.  The  general  rule,  says 
Lord  Ch.  J.  Abbott,2  is,  that  where  money  is  paid  generally,  without  any 
appropriation,  it  ought  to  be  applied  to  the  first  items  of  the  account ; 
but  the  rule  is  subject  to  this  qualification,  that  where  there  are  distinct 
demands,  one  against  persons  in  partnership,  and  another  against  only 
one  of  the  partners,  if  the  money  paid  be  the  money  of  the  partners,  the 
creditor  is  not  at  liberty  to  apply  it  to  the  payment  of  the  debt  of  the 
individual ;  that  would  be  allowing  the  creditor  to  pay  the  debt  of  one 
person  with  the  money  of  others."  The  question  in  such  case  is,  whether 
the  money  was  the  property  of  the  partnership,  or  of  the  individual,  mak- 
ing the  payment.  In  the  absence  of  any  specific  direction  by  the  debtor, 
the  law  would  apply  it,  in  the  first  case,  to  the  partnership  debt,  and  in 
the  last,  to  the  individual  debt.  This  is  in  accordance  with  the  general 
principles  of  equity,  that  partnership  property  must  first  be  applied  tc 
the  payment  of  partnership  debts,  and  the  individual  property  of  the 
partners  to  their  individual  debts.3  Of  this,  more  will  be  said  in  ita 
proper  place. 

*  Brooke  v.  Enderby,  2  Br.  &  Bin^.  TO.        3  Wilder  v.  Keeler,  3  Paige,  167.  Kirby 
8  Thompson  v.  Brown,  1  Moo.  &.  M.  40.    v.  Schooninaker,  3  Barb.  Ch.  R.  46.     Eg- 


10-i  Of  Account.  ("Ch  2. 

The  subject  of  agency  gives  rise  to  a  variety  of  questions  under  the 
bead  of  accounts,  with  reference  to  the  application  of  payments.  The 
agents  with  which  equity  is  most  conversant,  are  attorneys,  factors,  bail- 
iffs, consignees,  receivers,  stewards.1  The  general  rule,  to  be  departed 
from  only  under  special  circumstances,  is,  that  a  person  standing  in  this 
relation  to  his  employer,  is  bound  to  keep  regular  accounts,  not  only  of 
.ayments  but  of  receipts,  and  not  to  confound  the  property  of  his  prin- 
cipal with  his  own.  In  cases  of  gross  neglect  in  this  respect  it  has  been 
said,  that  the  agent  shall  not  be  permitted  to  charge  costs  ;  and  if  he  im- 
properly confound  the  property  of  his  principal  with  his  own,  be  is 
chargeable  with  the  whole.2  Chancellor  Kent,  in  Hart  v.  Ten  Eyck  3 
said,  "  The  rule  of  law  and  equity  is  strict  and  severe  on  such  occasions 
If  a  party,  having  charge  of  the  property  of  others,  so  confounds  it  with 
his  own,  that  the  line  of  distinction  cannot  be  traced,  all  the  inconvenience 
is  thrown  upon  the  party  who  produces  it,  and  it  is  for  him  to  distinguish 
his  own  property,  or  lose  it." 

In  many  cases  falling  under  the  head  of  agency,  where  the  transaction 
is  simple,  and  consists  only  of  a  few  items,  the  ordinary  remedy  at  law 
will  afford  complete  redress.  The  action  of  debt,  covenant  or  assumpsit, 
or  a  corresponding  action  under  the  code,  will  enable  the  complaining  party 
to  establish  his  rights,  and  obtain  satisfaction  for  any  injury  he  may  have 
sustained.  But  there  are  numerous  other  cases,  of  a  different  character, 
complicated  in  their  nature,  and  requiring  equitable  relief.  Sometimes 
a  discovery,  an  injunction  or  a  ne  exeat  is  required  ;  at  others,  a  multi- 
plicity of  suits  is  to  be  avoided ;  and  at  others,  more  full  and  adequate  relief 
is  required  than  can  be  granted  in  an  ordinary  action  at  law.  The  cir- 
cumstances which  will,  in  general,  give  a  preference  to  equitable  over 
legal  relief,  have  been  adverted  to  already,  and  the  general  principles 
have  been  set  forth.4 

The  cases  of  account  between  tenants  in  common,  between  joint  ten- 
ants, between  partners,  between  part  owners  of  ships,  and  between  the 
owners  of  ships  and  the  masters,  sometimes  fall  under  the  consideration 
of  agency,  and  sometimes  under  that  of  partnership.  Thus,  in  Mumford 
v.  Nicoll,5  it  was  held  that  though  the  part  owners  of  a  ship  are,  generally 

berts  v.  Wood,  3  Paige,  517.    Deveau  v.  ?  White  v.  Lincoln,  8  Vos.  363.   Luptan 

Fowler,  2  id.  400.    Tunns  v.  Trezevant,  v.  White,  15  id.  432. 

2  Desaus.  270.  Woddrop  v.  Price's  Ex'rs,  3  Hart  v.  Ten  Eyck,  2  J.  Ch.  R.  108. 

3  id.  203.    Simmons  v.  Tongue,  3  Bland's  4  See  ante,  pp.  90  to  02. 

Ch.  R.  356.  B  20  J.  R.  611.    Doddiugton  v.IIallet, 

1  Jeremy  on  Eq.  Juris.  B.  3,  pt.  2,  ch.  1  Yes.  497.  Abbott  on  Shipping,  6th  Am. 
5,  pp.  513  to  515.    Story's  Equity,  §  462.     ed.  137, 138,  and  notes. 


Oh.  2.]  Lien.  105 

speaking,  tenants  in  common,  yet  there  may  be  a  special  partnership  be- 
tween them,  in  the  ship,  as  well  as  in  the  cargo,  in  regard  to  a  particular 
royage,  or  adventure,  and  in  the  proceeds  arising  from  the  sale  of  them, 
and  the  profits  of  the  voyage.  And  when,  in  such  a  case,  one  of  two 
owners  receives  or  gets  possession  of  the  whole  proceeds,  he  has  a  right 
to  retain  them  until  he  is  paid  or  indemnified  for  what  he  has  advanced, 
or  paid  more  than  his  share,  for  outfits,  repairs,  or  expenses  of  the  vessel 
for  the  particular  voyage,  or  adventure  ;  but  not  for  a  general  balance1 
of  account  arising  from  former  and  distinct  voyages,  or  adventures  in 
which  they  have  been  concerned  together,  in  the  same,  or  other  vessels, 
there  being  no  general  partnership  between  them,  and  each  adventure 
creating  a  special  partnership,  by  itself,  which  terminated  with  the  par- 
ticular adventure. 

i 

The  question  with  respect  to  what  liens  are  created,  by  operation  of  law, 
upon  a  vessel,  was  much  considered  in  a  recent  case  in  the  supreme  court 
of  New- York.'  After  stating  that  the  relation  of  part  owners  of  a  vessel 
to  each  other  was  that  of  tenants  in  common,  and  not  joint  tenants  ;  and 
that  with  respect  to  partners,  it  might  be  laid  down,  as  a  general  prin- 
ciple, that  each  of  the  partners  has  a  specific  lien  in  the  partnership 
stock,  not  only  for  the  amount  of  his  share,  but  for  moneys  advanced  by 
him  beyond  that  amount,  for  the  use  of  the  copartnership,  it  was  said  by 
the  court :  ':  In  Doddington  v.  Hallet,  (1  Ves.  sen.  407,)  Lord  Hardwicke 
extends  this  doctrine  to  part  owners  of  ships,  holding,  in  a  case  where  one 
of  several  part  owners  died,  without  paying  his  proportion  of  the  expense 
of  building  and  fitting  out  a  ship,  that  the  other  part  owners  had  a  spe- 
cific lien  on  his  share,  for  the  moneys  which  they  had  laid  out  on  his  ac- 
count. But  Lord  Eldon,  after  great  consideration,  overruled  this  decision 
of  Lord  Hardwicke,  being  of  opinion  that  part  owners  of  a  ship,  being 
tenants  in  common  and  not  joint  tenants,  have  not,  by  analogy  to  part- 
ners, a  lien  on  the  shares  of  each  other."  (Ex  parte  Young,  2  Yes.  & 
Beame,  242.  Ex  parte  Harrison,  2  Rose,  76.  Coll.  on  Part.  G66,  a.) 
Judge  Story  gives  his  preference  to  the  doctrine  laid  down  by  Lord  Hard- 
wicke, as  most  consonant  to  equity,  and  as  founded  in  principle,  public 
policy  and  convenience.  He  treats  cases  of  this  kind  as  a  species  of  par- 
tnership with  reference  to  the  adventure  upon  which  the  ship  is  to  be  em- 
ployed ;  and  therefore,  the  repairs,  outfits  and  other  expenses  incurred  tc 
accomplish  the  enterprise,  are  deemed  to  be  made  on  general  account,  and 
intended  to  be  governed,  as  to  rights  and  liens,  by  the  rules  of  strict  part- 

1  Iwlale  v.  Gv>m\,  12  Barb.  414,  425. 
Eg.  Jib.  14 


106  Of  Accoua  r.  Cli  2.] 

nerships.  (Story  on  Partnerships,  §  444.)  Chancellor  Kent  followed  the 
rule  of  Lord  Eldon,  in  Nicoll  v.  Muinford,  (4  J.  Ch.  R.  522.)  but  hia 
decree  was  modified  by  the  court  of  errors,  and  the  rule  adopted  by  Lord 
Hardwicke  sustained.  (20  J.  R.  611,  S.  C.)  Ch.  J.  Spencer,  in  delivering 
the  prevailing  opinion  in  the  court  of  errors,  said,  that  he  did  not  intend 
to  overrule  the  distinction  between  partners  in  goods  and  merchandise, 
and  part  owners  of  a  ship.  The  former  are  joint  tenants,  and  the  lattei 
are,  generally  speaking,  tenants  in  common  ;  and  one  cannot  sell  the  shine 
of  the  other.  "  But  I  mean  to  say,"  he  observes,  "  that  part  owners  of 
a  ship  may,  under  the  facts  and  circumstances  of  this  case,  become  part- 
ners as  regards  the  proceeds  of  the  ship ;  and  if  they  are  to  be  so  re- 
garded, the  right  of  one  to  retain  the  proceeds,  until  he  has  paid 
what  he  has  advanced,  beyond  his  proportion,  is  unquestionable." 
In  that  case  the  question  arose  between  the  part  owners  who  had  made 
the  advances  for  outfits,  repairs  and  expenses,  and  received  the  whole 
avails  of  vessel  and  cargo,  and  the  assignees  under  the  insolvent  act,  of 
the  other  part  owners.  There  was  a  strong  equity  in  favor  of  treating 
the  vessel  as  well  as  cargo  as  the  partnership  stock,  and  thus  enabling 
the  part  owner,  by  whose  means  the  fund  had  been  acquired,  to  be  reim- 
bursed, before  the  creditors  of  the  insolvent  part  owners  could  be  per- 
mitted to  come  in  for  a  share. 

We  now  pass  from  this  to  another  branch  of  the  subject,  that  of  con 
tribution  and  exoneration. 

If  the  liabilities  of  two  or  more  persons  be  joint,  he  who  has  paid  more 
than  his  share  is  entitled  to  contribution  from  the  rest.  If  some  are 
liable  in  priority  to  the  rest,  the  parties  secondarily  liable,  if  compelled 
to  discharge  the  claim,  are  entitled  to  exoneration.1  The  subject  of  con- 
tribution  and  exoneration  arises  properly  under  the  head  of  Account,  and 
both  may  be  treated  together. 

In  order  that  either  of  these  equities  should  arise,  it  is  essential  that 
the  charge  be  binding,  and  that  it  do  not  arise  ex  delicto. 

This  subject  was  well  considered  by  Chancellor  Kent,  in  an  early  case.2 
The  principle  of  contribution,  says  the  chancellor,  is  equality  in  bearing 
a  common  burden,  but  equality  is  not  equity  between  two  defendants  who 
stand  on  different  ground.  They  must  stand  in  equali  jure,  or  the  rule 
does  not  apply.  A  court  of  law  will  now  sustain  an  action  for  contribu- 
tion between  two  debtors,  or  sureties,  under  an  implied  assumpsit  arising 
from  the  knowledge  and  operation  of  the  general  principle  that  equality 

1  Adam*'  Equity,  267,  495.  s  Peck  v.  Ellis,  2  J.  Ch.  R.  136,  137. 


Oh.  2.J  Contribution  and  Exoneration.  107 

is  equity.  But  a  court  of  law  will  not  sustain  an  action  between  two 
joint  trespassers.  If  A.  recover  in  tort  against  two  defendants,  and  levy 
the  whole  damages  on  one,  that  one  cannot  recover  a  moiety  againsc  the 
other  for  his  contribution.1  Chancellor  Kent,  in  the  same  case,2  approved 
of  that  decision,  and  said  he  was  not  apprised  of  any  decision  in  chancery 
to  the  contrary.  In  Philips  v.  Briggs,  (Hard.  164,)  a  bill  was  filed  by 
one  of  the  sheriffs  of  Middlesex  against  the  other,  for  contribution,  in  a 
case  where  the  damages  had  been  levied  on  one  for  an  escape  suffered  by 
both,  and  the  court  of  exchequer  considered  it  a  case  of  the  first  im- 
pression, and  doubted,  and  no  decision  appears  to  have  been  made.  But 
in  a  later  case3  the  master  of  the  rolls  observed,  that  where  entire  damages 
are  recovered  against  several  defendants  for  a  tort,  a  court  of  justice  will 
not  interfere  to  enforce  contribution  among  the  wrongdoers.  The  wisdom 
and  policy  of  the  rule  are  thus  vindicated  by  the  chancellor  in  the  same 
case  :  "  There  would  be  no  safety  to  property,  if  a  large  combination  of 
trespassers  were  entitled  to  the  assistance  of  courts  of  justice  in  the  ap- 
portionment of  the  damages.  The  knowledge  that  each  individual  is 
responsible  for  the  whole,  constitutes  the  great  check." 

Chancellor  Walworth,  in  a  case  before  him,  of  contributions  among 
sureties,  said  :  "  The  equitable  principles  of  the  civil  law  as  to  suretiship, 
have  long  since  been  established  as  the  law  of  the  court  of  chancery  upon 
that  subject.  One  of  the  fundamental  principles  of  that  law  is.  that  co- 
sureties are  bound  to  contribute  equally,  as  between  themselves,  to  the 
discharge  of  the  common  burden ;  and  another  is,  that  if  one  surety  pays 
the  whole  debt  for  which  they  were  jointly  bound,  he  is  entitled  to 
a  cession  of  the  rights  and  remedies  of  the  creditor,  not  only  as  against 
the  principal  debtor,  but  also  as  against  his  co-sureties.  According  to 
the  modern  doctrine  on  this  subject,  the  surety,  by  the  mere  payment  of 
the  debt,  and  without  any  actual  assignment  from  the  creditor,  is  in  equity 
subrogated  to  all  the  rights  and  remedies  of  the  creditor,  for  the  recovery 
of  his  debt  against  the  principal  debtor  or  his  property,  or  against  the  co- 
sureties or  their  property,  to  the  extent  of  what  they  are  equitably 
bound  to  contribute."4 

Where  two  are  bound  for  the  payment  of  a  specific  sum,  and  one  pays 
the  whole,  he  can  either  at  law  or  equity  call  upon  the  other  to  contribute, 
and  thus  recover  a  moiety  of  what  he  had  paid.5  In  cases  of  contribution 
of  one  surety  against  others,  a  court  of  equity  still  retains  jurisdiction, 

1  Merry  weather  v.  Nixon,  8  D.  &  E.  Miller  v.  Finton,  11  Paige,  18.    Depuy 

186.  v.  Johnson,  1  Bibb,  562. 

3  Peck  v.  Ellis,  2  J.  Ch.  R.  136.  4  Cuyler  v.  Ellsworth,  6  Paige,  32. 

Lingard  v.  Bromley,  1  Ves.  &  B.  117.  6  Owens  v.  Collkson.  3  Gill  &  John.  25k. 


108  Of  Account.  [Ch.  2. 

■n  North  Carolina,  notwithstanding  the  statutory  jurisdiction  of  courta 
of  law.1  The  principle  on  which  contribution  is  allowed,  is  that  the 
plaintiff,  by  his  payment,  has  removed  a  common  burden  from  the  defend- 
ant and  himself;  and  the  defendant  has  received  a  benefit  from  such 
payment.2 

At  law,  when  there  are  more  than  two  sureties,  and  one  pays  the  whole 
debt,  the  principal  being  insolvent,  he  cannot  bring  an  action  against  his 
co-sureties  jointly,  but  each  must  be  sued  separately  for  his  own  liability.3 
V  different  rule  prevails  in  equity.4  And  a  creditor  suing  at  equity  upon 
j,  joint,  or  joint  and  several  undertaking,  must  bring  all  the  debtors  be- 
fore the  court,  principals  as  well  as  sureties,  for  no  account  taken  would 
be  binding  upon  an  absent  party,  and  consequently,  no  complete  decree 
could  be  made.  Besides,  the  debtors  are  entitled  to  the  assistance  of 
each  other  in  taking  the  accounts,  and  when  one  has  paid  more  than  his 
share  of  the  debt,  he  is  entitled  to  a  contribution  from  him  who  has  paid 
nothing,  or  less  than  his  share  ;  and  by  making  all  the  debtors  parties, 
the  circuity  of  another  suit  for  contribution  is  thereby  avoided.5  Sure- 
ties have  a  common  interest  in  the  relief  sought,  and  that  is  enough  to 
obviate  the  charge  of  multifariousness.6 

As  a  general  rule,  a  creditor  cannot  be  compelled,  in  equity,  to  resort  in 
the  first  instance  to  the  principal,  or  his  property,  before  he  can  enforce 
his  remedy  against  the  surety.7  Pie  can  do  no  act  to  invalidate  or  dis- 
charge the  security  he  has  taken  from  the  principal  debtor,  to  the  preju- 
dice of  the  rights  of  the  surety.8  The  surety  may  resort  to  equity,  if  he 
apprehends  danger  from  the  creditor's  delay,  and  compel  the  creditor  to 
sue  the  principal  debtor,  though  probably  he  must  indemnify  the  creditor 
against  the  consequences  of  risk,  delay  and  expense.9  The  surety,  says 
Chancellor  Kent,  in  the  last  mentioned  case,  "  has  a  right  on  the  day  the 
debt  is  due,  to  come  into  chancery  and  insist  on  its  being  put  in  suit ; 
and  if  the  obligee  has  suspended  that  right,  by  a  new  agreement  with 
the  debtor,  he  has  disabled  himself  to  do  that  equity  to  the  surety  which 

1  Shepherd  v.  Monroe,  2  Cas.  Law  Rep.  6  Conro  v.  Port  Henry  Iron  Co.,  12 
!»24.  Barb.  27. 

2  Souven  v.  Joyner,  1  Hill's  Ch.  R.  260.  '  Champion  v.  Brown,  6  J.  Ch.  R.  406. 

3  Powell  v.  Mathis,  4  Iredell,  83.  Ranelaugh  v.  Hays,  1  Tern.  189;  S.  C, 

4  Cray  thorn  v.  Swinburn,  14  Ves.  164.  2  Ch.  Cases,  146.  Pitman's  Prin.  and 
Dias  v.  Bochaud,  10  Paige.  445.  Surety,  125,  and  cases  cited.     Hayes  v, 

5  Pitman  on  Prin.  and  Surety,  234, 235.  Ward,  4  J.  Ch.  R.  131,  136. 
Cockburn    v.    Thompson,    16  Ves.    321.  8  Hayes  v.  Ward,  4  J.  Ch.  R.  130. 
O'CandVcase,  Amb.  61.   Bland  v.  Winter,  9  Id.     Kiug  v.  Baldwin,  2  id.  562. 

1  Sim.  &  Stu.  246.     Plunket  v.  Penson, 

2  Atk.  51. 


Ch.  2.]  Exoneration.  1051 

he  had  a  right  to  demand,  and  which  the  relation  between  the  surety  and 
debtor  required.  This  principle  is  equally  available  at  law  and  in  equity. 
In  order  to  discharge  a  surety  in  consequence  of  a  variation  of  the  con- 
tract by  the  creditor  and  debtor,  not  only  must  the  fact  of  suretiship 
exist,  but  it  must  be  known  to  the  creditor  at  the  time  of  the  extension. 
If  the  fact  do  not  appear  on  the  face  of  the  security,  it  must  be  proven 
clearly.  Though  the  surety  be  not  personally  bound,  but  has  only 
mortgaged  or  pledged  his  property  by  way  of  security  for  the  debt  of 
another  the  general  principle  applies,  and  the  property  is  released,  by  a 
binding  agreement  of  the  principal,  without  the  assent  of  the  surety, 
extending  the  time  of  the  payment.  Giving  time,  says  Nelson,  J.,  in  the 
Bame  case,  by  a  valid  and  binding  agreement,  by  the  creditor  to  the 
debtor,  without  the  assent  of  the  surety,  operates  to  discharge  him,  both 
at  law  and  in  equity ;  and  that,  not  only  whether  any  loss  has  thereby 
happened  to  the  surety  or  not,  but  even  if  it  have  been  an  actual  benefit.1 

The  right  of  exoneration  arises  between  surety  and  principal,  so  soon 
as  the  surety  has  paid  any  part  of  the  debt.  Immediately,  on  making 
such  payment,  he  may  bring  assumpsit  at  law  against  his  principal  for 
indemnity.2 

The  same  equity  which  enables  a  surety,  after  payment  by  himself,  to 
recover  the  amount  from  his  principal,  warrants  him  in  filing  a  bill  to 
compel  payment  by  the  principal,  when  he  has  been  brought  under  lia- 
bility by  the  debt  falling  due,  though  he  may  not  have  been  actually 
sued.3 

At  law,  a  surety,  as  such,  cannot  call  on  his  principal,  until  he  has  ac- 
tually paid  the  money.4  The  remark  of  Paige,  J.,  in  El  wood  v.  Dieffen- 
dorff,5  that  a  surety  has  no  cause  of  action  against  the  principal  debtor 
until  he  has  actually  paid  the  debt,  must  be  understood  as  meaning  a 
cause  of  action,  at  law,  for  money  paid.  The  drift  of  the  opinion,  and 
the  references,  show  that  such  was  the  point  on  which   the  judge  waa 

'  Gahn  v.  Nieracewicz,  11  "Wend.  312;  2  Toussaint  v.  Martenant,  2  T.  R.  100 

affirming  S.  C,  3  Paige,  614.      Rie3  v.  Exall   v.   Patridge,    8  id.  176.     Tom  v 

Berrington,  2  Ves.jun.540.     Boutbee  v.  Goodrich,  2  J.  R.  213. 

Stubbs,  18  Ves.  21.     Samuell  v.  How-  3  Adams'  Eq.  270,  502,  Phil.  ed.     Pit- 

arth,  3  Merivale,  278.     Theobold  on  Prin.  man's  Prin.  and  Surety,  125.     Antrobus 

and  Surety,  134,  135,  150.     Elwood  v.  v.  Davidson,  3  Meriv.  569,  578.     King  v. 

Diefiendorff,  5  Barb.  398.     Rathbone  v.  Baldwin,  2  J.  Oh.  R.  562. 

Warren,  10  J.  R.  5S7.    Robinson  v.  Frost,  4  Powell  v.  Smith,  8  J.  R.  249. 

»4  Barb.  536.  •  Elwood  v.  Dieffendorff,  5  Barb.  410. 


110  Op  Account.  LCh  "2 

dwelling.     He  was  not  considering  the  remedy  in  equ.  ty,  of  the  surety 
against  the  principal,  before  payment. 

It  is  a  general  rule,  that  in  equity  a  surety  is  entitled  to  the  benefit 
of  all  the  securities  which  the  creditor  has  against  the  principal ;  this 
rule  applies  only  to  such  securities  as  continue  to  exist,  and  do  not  get 
back  upon  payment  to  the  person  of  the  principal  debtor.  Where  a  bond 
is  given  by  principal  and  surety,  and  at  the  same  time  a  mortgage  made 
for  securing  the  debt,  the  surety,  if  he  pays  the  bond,  has  a  right  to 
stand  in  the  place  of  the  mortgagee.1  In  another  case,2  Lord  Brougham 
said :  "Where  a  person  pays  off  a  bond  in  which  he  is  either  co-obligor  or 
subsidiaries  he  has,  at  law,  an  action  against  the  principal  for  money  paid 
to  his  use,  and  he  can  have  nothing  more.  The  joint  obligation  towards 
the  creditor  is  held  to  give  to  the  principal  notice  of  the  payment,  and 
also  to  prove  his  consent  or  authority  to  the  making  of  that  payment. 
This  is  necessary  for  enabling  any  man,  who  pays  another's  debt,  to  come 
'against  that  other,  because  a  person  cannot  make  himself  the  creditor  of 
another  by  volunteering  to  discharge  his  obligations.  But  beyond  this 
claim,  which  is  on  simple  contract  merely,  there  exists  none  against  the 
principal  by  the  surety  who  pays  his  debt ;  nor,  where  the  matter  is 
closely  viewed,  ought  there  to  exist  any  other."  "  The  case  standing  thus 
at  law,  do  considerations  of  equity  make  any  alteration  in  its  aspect  ? 
The  rule  here  is  undoubted,  and  it  is  one  founded  on  the  plainest  princi- 
ples of  natural  reason  and  justice,  that  the  surety  paying  off  a  debt  shall 
stand  in  the  place  of  the  creditor,  and  have  all  the  rights  which  he  has, 
for  the  purpose  of  obtaining  his  reimbursement.  It  is  hardly  possible  to 
put  his  right  of  substitution  too  high,  and  the  right  results  more  from 
equity  than  from  contract  or  quasi  contract;  unless  in  so  far  as  the  known 
equity  may  be  supposed  to  be  imported  into  any  transaction,  and  so  to 
raise  a  contract  by  implication.  The  doctrine  of  the  court,  in  this  respect, 
was  luminously  expounded  in  the  argument  of  Sir  Samuel  Romily,  in 
Craythorn  v.  Swinburne,  (14  Ves.  160  ;)  and  Lord  Eldon,  in  giving  judg- 
ment in  that  case,  sanctioned  the  exposition  by  his  full  approval.  A 
surety,  to  use  the  language  of  Sir  S.  Romily's  reply,  will  be  entitled  to 
every  remedy  which  the  creditor  has  against  the  principal  debtor,  to  en- 
force every  security  and  all  means  of  payment ;  to  stand  in  the  place  of 
the  creditor,  not  only  through  the  medium  of  the  contract,  but  even  by 
means  of  securities  entered  into  without  the  knowledge  of  the  surety ; 
having  a  right  to  have  those  securities  transferred  to  him.  though  there 

1  Copis  v   Middleton,  IT,  &  Kussell,        2  Hodgson  v.  Shaw,  3  Mylno  &  Keen-i, 
224.  183. 


Ch  2 1  Exoneration  HI 

was  no  stipulation  for  that ;  and  to  avail  himself  of  all  those  securitie? 
against  the  debtor."  (14  Ves.  162.)  The  chancellor  admits  the  rule  to 
be,  that  when  the  surety  to  a  bond  pays  off  the  bond,  the  obligation  is 
extinguished,  and  no  action  will  lie  upon  it.  But  though  the  bond  is  ex- 
tinguished, the  surety  is  entitled  to  all  collateral  securities  which  the 
obligee  had  against  the  original  debtor.  While  his  remedy  against  the 
principal  is  for  money  paid  to  his  use,  he  can,  nevertheless,  enforce  the 
securities  thus  taken.  This  doctrine  was  affirmed  by  Paige,  J.,  in  El- 
wood  v.  Dieffendorff,  (supra.)1 

The  doctrine  of  Lord  Brougham,  in  Hodgson  v.  Shaw,  (supra,)  was  ap- 
proved by  the  court  of  appeals  of  New-York  in  a  recent  case.2  The  right 
of  the  surety  thus  to  be  subrogated,  on  payment  of  the  debt,  to  the  se- 
curities held  by  the  creditor,  does  not,  the  court  said,  depend  upon  con- 
tract, but  rests  upon  principles  of  justice  and  equity.  It  is  well  and 
firmly  established  in  the  jurisprudence  of  this  country  and  England.3 

It  has  been  shown  that  if  the  obligee  does  an  act  to  the  injury  of  the 
surety,  or  varies  the  terms  of  the  contract,  or  enlarges  the  time  of  the 
performance,  without  the  assent  of  the  surety,  the  latter  will  be  discharged.-1 
A  mere  delay  of  the  creditor  to  prosecute  the  principal  will  not  impair 
the  liability  of  the  surety,  unless  such  delay  is  in  pursuance  of  a  binding 
agreement  and  without  the  assent  of  the  surety.5  But  where  the  cred- 
itor, though  urged  by  the  surety  to  prosecute  and  collect  the  money  from 
tl  -  principal,  refused  to  do  so,  and  delayed  until  the  principal  became  in- 
solvent, such  refusal  was  held  a  defense  to  the  surety,  either  at  law  or  in 
equity.6  But  this  doctrine  is  believed  to  be  a  departure  from  the  English 
law,  and  has  been  held  with  great  strictness  by  the  courts  of  New- York. 
Thus,  in  a  later  case.7  the  court  held  that  this  neglect  of  the  creditor  to  sue 
fir  his  debt,  after  being  notified  to  do  so  by  the  surety,  would  not  dis- 
charge the  surety,  if  the  principal  was  insolvent  at  the  time  such  notice 
was  given.  And  when  the  circuit  judge  charged,  that  the  term  solvent, 
in  law,  meant  that  "  a  man  was  able  to  pay  all  his  debts  from  his  own 
means,  or  that  his   property  was  in  such  a  situation  that  all  his  debts 

» Elwood  v.  Dieffendorff,  5  Barb.  398.    117.    Eddy  v.  Traver,  6 10.  521.    Wilkes 

2  Mathews  v.  Aiken,  1  Comst.  595.  v.  Harper,  2  Barb.  Ch.  338. 

3  Clason  v.  Morris,  10  J.  R.  524.      Cur-        *  See  ante,  and  cases. 

tis  v.  Tyler,  9  Paige,  432.  Heath  v.  Hand,        B  Sarly  v.  Elmore,  2  Paige,  497.    Wag- 
1  id.  329.     La  Grange  v.  Merrill,  3  Barb,    man  v.  Hoag,  14  Barb.  232. 
Ch.  R.  G25.     Ontario  Bank  v.  Walker,  1        6  King  v.  Baldwin,  17  J.  R.  384.    Pain 
Hill.  652.    Cheesborough  v.  Millard,  1  J.    v.  Packard,  13  id    174.    The  People  v. 
Ch.409.     Sandford  v.  McLean,  3  Paige,    Jansen,  7  id.  332. 

7  Herrick  v.  Borst,  4  Hill,  650 


> 


m  Of  Account.  [Ch.  2 

might  be  collected  out  of  it  by  legal  process,"  the  charge  was  approved 
In  another  case,  the  court  of  errors  held,  that  to  discharge  a  surety  on  the 
ground  of  the  omission  of  the  creditor  to  proceed  against  the  principal 
debtor  when  requested  so  to  do,  it  must  appear  that  the  principal  was. 
solvent  at  the  time  of  the  request,  within  the  jurisdiction  of  the  state 
in  which  the  suit  against  the  surety  is  instituted,  and  that  the  creditor, 
without  any  reasonal^e  excuse,  neglected  or  refused  to  proceed,  until  the 
principal  debtor  became  insolvent  and  unable  to  pay.1  In  delivering  the 
opinion  of  the  court  of  errors,  which  was  unanimous,  the  chancellor  sail] ; 
"In  Pain  v.  Packard,  (13  J.  R.  174,)  the  supreme  court  decided,  that  the 
surety  was  discharged  when  the  principal  debtor  was  perfectly  responsi- 
ble at  the  time  the  debt  became  due,  and  the  creditor,  although  requested 
by  the  surety,  refused  to  proceed  and  collect  his  debt,  until  the  princi- 
pal became  insolvent.  This  decision  was  made  without  argument,  and 
two  at  least  of  the  judges  who  concurred  therein,  afterwards  expressly 
dissented  from  it,  and  declared  themselves  satisfied  it  was  wrong.  It 
was  also  overrule  I  by  Chancellor  Kent  in  King  v.  Baldwin,  (2  J.  Ch.  11. 
554.)  and  although  Ch.  J.  Spencer  afterwards  succeeded  in  the  court  of 
errors  (17  J.  R.  386)  in  reversing  the  decree  of  the  chancellor,  it  was  in 
opposition  to  the  votes  of  all  the  other  justices  of  the  supreme  court  who 
took  part  in  the  decision.  The  decision  was  made  by  the  casting  vote  of 
the  president,  against  the  opinions  of  some  of  the  most  distinguished  law- 
yers in  the  state,  who  were  then  members  of  the  court  as  senators.  It 
also  stands  in  opposition  to  the  decisions  of  most,  if  not  all,  of  the  states  in 
the  union,  where  the  question  has  arisen.  (Davis  v.  Huggins,  3  N.  II. 
231.  Frye  v.  Barker,  4  Pick.  382.  Buchanan  v.  Bordley,  4  liar.  &  Mo- 
Hen.  41.  Croughton  v.  Duvall,  3  Call's  R.  G9.  Moore  v.  Brousard, 
20  Mart.  R.  277.  Lenox  v.  Prior,  3  Wheat.  524.)  In  Pennsylvania, 
where  they  have  no  court  of  chancery  to  enable  the  surety  to  proceed  in 
his  own  name  to  compel  pa}Tment  by  the  creditor,  it  has,  after  much  hesi- 
tation, been  decided,  that  where  the  principal  is  solvent,  the  surety  will 
be  discharged  if  the  creditor  does  not  proceed  and  collect  the  debt  on 
request,  or  prevent  the  surety  to  proceed  in  his  own  name.  (Dehuff  v. 
Turbit's  Ex'r,  3  Yeates,  157.  Cope  v.  Smith's  Ex'rs,  8  Serg.  &  R.  110. 
Gardner,  adm'r,  v.  Ferree,  15  id.  28.)  In  another  case  the  supreme 
court  refused  to  extend  the  principle  of  Pain  v.  Packard,  and  King  v. 
Baldwin,  to  the  case  of  a  surety  by  covenant  under  seal,  to  pay  rent  in 
case  the  tenant  made  default.  The  court  below  overruled  a  ple.t,  in  an 
action  on  the  covenant,  which  plea  stated  that  the  defendant  reciuested 

1  Warner  v.  Beardsley,  8  Wend.  104. 


Oh.  2.\  Exoneration.  113 

the  plaintiff  to  proceed  and  collect  the  rent  then  due  by  an  immediate  dis- 
tress of  the  tenant's  goods,  and  thereby  relieve  the  surety,  but  that  the 
plaintiff  refused  so  to  do,  though  he  well  knew  that  the  circumstances  of 
the  tenant  were  becoming  desperate,  and  that  the  rent  could  not  be  col- 
lected by  any  other  process  than  by  distress,  and  the  supreme  court 
affirmed  the  judgment.1 

The  doctrine  of  the  cases  of  Pain  v.  Packard,  and  King  v.  Baldwin,  arc 
probably  still  to  be  followed  in  New- York,  though  they  are  not  to  be  ex- 
tended. That  it  is  in  conflict  with  the  English  cases,  is  very  obvious.2 
In  a  late  case  the  supreme  court  said,  giving  time  or  accepting  a  compo- 
sition does  not  discharge  the  surety,  if  all  remedies  against  the  principal 
are  reserved.3 

It  has  been  made  a  question,  whether  the  recovery  of  a  joint  judgment 
at  law  against  the  principal  and  surety  does  not  put  an  end  to  the  rela- 
tion of  principal  and  surety,  and  thenceforth  make  them  both  principal 
debtors.  This  was  so  held  by  the  late  supreme  court ;  and,  consequently, 
after  the  recovery  of  the  judgment,  evidence  was  held  inadmissible  to 
show  that  one  was  surety,  and  that  he  was  discharged,  by  any  subsequent 
dealing  with  the  principal,4  On  a  subsequent  trial  it  was  held,  in  the 
present  supreme  court,  that  when  a  judgment  is  obtained  on  a  demand 
against  principal  and  surety,  and  a  levy  thereon  is  made,  on  the  property 
of  one  of  the  debtors,  which  levy  is  relinquished  on  accepting,  by  the 
creditor,  of  a  bond  and  mortgage  against  the  principal  debtor,  and  a  re- 
ceipt in  full  of  the  judgment  is  thereupon  given,  that  it  operates  to 
discharge  the  surety.5  This  decision  recognizes  the  rights  of  the  surety 
after,  as  well  as  before  judgment.  And  the  same  doctrine  has  been  as- 
serted by  the  chancellor  and  court  of  errors.6  The  case  of  La  Farge  v. 
Herter  was  brought  a  third  time  before  the  supreme  court,  when  it  was 
distinctly  held,  that  in  this  state,  equity  recognizes  and  protects  the  rela- 
tion and  rights  of  a  surety,  after  as  well  as  before  judgment.  And  the 
same  rule  extends  to  courts  of  law.7     The  right  of  subrogation,  although 

o  o  o 

originating  in  courts  of  equity,  is  now  fully  recognized  as  a  legal  right : 
and  any  act  of  the  creditor  which  interferes  with  that  right,  and  is  a  fraud 
upon  it,  operates  to  discharge  the  surety,  as  well  at  law  as  in  equity.     Of 

1  Haggles  v.  Holden,  3  Wend.  216,  3  Waginan  v.  lloag,  14  Barb.  232. 

"Pitman   on   Prin.   and   Surety,  196.  *  La  Farge  v.  Herter,  3  Denio,  157. 

Briekwood   v.   Aniss,   5   Taunton,   614.  6  S.  C,  4  Barb.  346. 

"Wright  v.  Simpson,  5  Ves.  734,  and  see  8  Bangs- v.  Strong,  10  Paige,  11  ;  aff.  on 

dissenting  opinion  of  Van  Yechten,  ?en-  error,  7  Hill,  250. 

ator,  in  King  v.  Baldwin,   17  J.  It.   397,  '  La  large  v.. Herter,  11  IJurb.  15ti 
where  ihc  ca>es>  are  collected. 

Eq,  J  in.  J5 


114  Of  Account.  [Ch.  2 

course,  if  such  extension  of  time  by  the  creditor  be  with  the  knowledge 
and  assent  of  the  surety,  it  takes  the  case  out  of  the  rule.  These  prin- 
ciples were  all  approved  and  affirmed  on  appeal  by  the  court  of  appeals 
at  the  December  term,  1853.1  It  follows  that,  in  this  state,  the  recovery 
of  a  joint  judgment  against  principal  and  surety  does  not  merge  the  sure- 
tiship  of  the  surety,  and  render  him  a  principal  debtor.  His  rights  will 
nevertheless  be  protected  and  enforced. 

It  has  already  been  said  if  the  creditor,  by  a  valid  agreement,  gives 
time  to  the  principal,  the  surety  is  discharged.  In  a  late  case  in  the  court 
of  appeals  of  New- York,  it  was  said  by  Bronson,  J.,  and  Jewett,  C.  J., 
that  an  agreement  to  forbear  the  payment  of  the  debt  in  consideration  of 
a  usurious  premium  paid  for  such  forbearance  is  void,  and  therefore  cannot 
operate  to  discharge  the  sureties.2  But  the  decision  of  that  point  was  not 
Essential  to  uphold  the  decree  under  review,  and  the  other  six  judges  gave 
no  opinion  upon  it. 

An  usurious  agreement,  though  declared  to  be  void,  is  not  a  nullity  like 
an  agreement  brought  about  by  actual  fraud,  or  by  a  perjury.  It  falls 
under  the  class  of  constructive  frauds,  as  being  in  contravention  of  public 
policy,  and  no  one  can  avoid  it  except  the  party  who  is  the  victim  of  the 
usury,  or  one  who  stands  in  legal  privity  with  him.3  Such  agreement 
to  give  time  is  a  colorable  obstruction  to  the  surety's  right,  and  should, 
on  principle,  operate  to  discharge  him.  "Where  it  does  not  appear  by  the 
J  face  of  a  promissory  note,  made  by  several  makers,  in  what  relation  the 
parties  stand  to  each  other,  it  may  be  shown  by  parol  evidence.4  Adding 
the  word  "  principal,"  or  "  surety,"  as  the  case  may  be,  affords  evidence  of 
the  relationship,  and  notice  thereof  to  the  whole  world.5  Prima  facie,  sev 
eral  sureties  who  sign  the  note  of  their  principal,  at  different  times,  with 
out  communication  with  each  other,  are  bound  to  contribute  equally  to 
the  payment  of  the  note,  as  between  themselves.  And  consequently, 
when  one  of  two  sureties  pays  the  whole,  he  may  recover  a  moiety  from 
his  co-surety,  in  case  the  principal  be  insolvent.6 

A  party  who  is  about  to  become  surety  upon  a  note  already  executed 
by  the  principal  and  other  sureties,  may  regulate  the  terms  of  his 
suretiship  to  suit  himself.7  He  may  contract  to  be  a  co-surety  with 
others  who  had  executed  the  instrument,  or  to  be  as  between  him  and 

1  See  4  Selden's  Rep.  21  id.  195.  Norton  v.  Coon,  3  Denio,  130 ; 

8  Vilas  v.  Jones,  1  Comst.  274.  S.  C,  2  Seld.  33, 39. 

*  Post  v.  Bank  of  Utica,  7  Hill,  391.  5  Carpenter  v.  King,  snpra. 

*  Carpenter  v.  King,  9  Met.  515.  Baker  •  Norton  v  Cook,  2  Seld.  33. 
v.  Briggs,  8  Pick.  122.     Harris  v.  Brooks,  '  Id.  39. 


Ch,  2.]  Contribution.    Party  Wall.  115 

them,  surety  alone,  not  co-surety  with  them,  and  thus  exempt  himself 
from  liability  to  contribute.1  But  such  special  contract,  varying  the 
ordinary  relationship  of  surety,  cannot  be  proved  by  parol.  The  reason 
for  this  distinction  is  thus  stated  by  Gray,  J".,  in  Norton  v.  Coons,  already 
cited  :  "  As  between  the  makers  of  the  note  and  the  payee,  their  rights 
and  liabilities  are  regulated  by  the  terms  of  the  contract  as  expressed : 
as  between  the  sureties,  the  contract  is  implied  from  their  signatures  to 
the  note,  so  that  the  whole  contract  as  expressed  and  implied  is,  in  short, 
an  agreement  by  the  several  obligors  to  pay  the  note  at  maturity,  and  if, 
upon  default  of  its  being  paid,  either  of  the  sureties  pay  it,  the  others 
shall  contribute,  each  his  equal  proportion  of  the  amount  paid,  less  the 
share  of  the  one  who  has  paid  the  whole.  In  the  one  case,  the  parties  have 
defined  their  liabilities  in  express  terms ;  in  the  other,  the  law  has  de- 
fined them,  and  in  terms  equally  express ;  and  thus  settles,  as  between 
the  sureties,  the  legal  effect  of  subscribing  their  names  to  the  note. 
They  are  each  chargeable  with  knowledge  of  the  legal  liability  incurred 
as  between  themselves  by  the  execution  of  the  note,  and  should  there- 
fore be  regarded  as  standing  in  the  same  relation  to  each  other,  and 
bound  by  the  same  rule  they  would  be  if  the  legal  effect  of  their  con- 
tract had  been  fully  written  above  their  signature." 

The  learned  judge,  however,  admits  that  parol  evidence  of  extrinsic 
facts  is  admissible  to  rebut  the  presumption  arising  from  the  face  of  the 
instrument,  that  all  are  principals  and  equally  bound  to  contribute.  But 
"  he  denies  that  you  can  go  further,  and  show  by  parol,  not  by  extrinsic 
facts,  an  agreement  varying  the  operation  of  the  contract  as  denned  by 
law  and  subscribed  to  by  him,  and  thus  in  effect  made  his  written  agree- 
ment. The  law  having  defined  the  rights  and  obligations  of  the  sureties 
as  between  themselves,  their  signatures  establish  their  assent  to  it,  and 
the  contract  is  thus  made  as  clear  and  certain  as  if  the  whole  had  been 
written.  It  is  the  highest  and  best  evidence  of  their  agreement,  and  the 
reason  of  the  rule  that  excludes  parol  evidence  from  being  received  to 
vary  the  operation  of  a  contract,  wholly  written  by  the  parties,  applies 
with  all  its  force  to  this  c&se  " 

The  doctrine  of  contribution  has  been  extended  to  a  great  variety  of 
cases.  Qui  sentit  commodum  sent  ire  debet  et  onus  ;2  he  who  derive* 
the  adv-atitage  ought  to  sustain  the  burden,  is  a  maxim  of  equity  founded 

1  Harris    v.    Warner,    18    Wend.    400.        a  2  Inst.  489.     Broom's  Maxims,  5G3. 
Norton  v.  Coon,  2  Seld.  39.     Pitman  on 
Prlii.  and  Surety,  148,  9. 


116  Of  Aecoiuvi.  [Ch.2. 

in  -wisdom  and  good  sense.  The  doctrine  is  not  so  much  founded  on 
contract,  as  on  the  principles  of  equity  and  justice,  that  where  the  inter- 
est is  common,  the  burden  also  should  be  common  ;  and  this  principle 
that  equality  of  right  requires  equality  of  burden,  has  a  more  effectual 
operation  in  a  court  of  equity  than  in  a  court  of  law.  Chancellor  Kent 
applied  the  doctrine  to  the  case  where  there  was  an  old  party  wall  be- 
tween two  owners  of  houses,  in  the  city  of  New- York,  and  one  of  them 
being  desirous  to  build  a  new  house  on  his  lot,  pulled  down  the  old  house, 
and  with  it  the  party  wall,  which  was  ruinous,  and  rebuilt  it  with  his  new 
house.  The  chancellor  held,  that  the  owner  of  the  adjoining  house  and 
lot  was  bound  to  contribute  ratably  to  the  expense  of  the  new  wall  of 
partition.1  It  was  conceded,  in  that  case,  that  the  adjoining  owner  was  not 
bound  to  contribute  to  building  the  new  wall  higher  than  the  old,  nor, 
if  materials  more  costly,  or  of  a  different  nature  were  used,  was  he 
bound  to  pay  any  part  of  the  extra  expense.2 

In  his  opinion,  in  that  case,  the  chancellor  says :  <:  In  the  case  before 
me,  the  parties  had  equality  of  right  and  interest  in  the  party  wall,  and 
it  became  absolutely  necessary  to  have  it  rebuilt.  It  was  for  the  equal 
benefit  of  the  owners  of  both  houses,  and  the  plaintiff  ought  not  to  bo 
left  to  bear  the  whole  burden."  The  inconvenience  of  the  repair  was 
inevitable,  and  as  small  and  as  temporary  as  the  nature  of  the  case  admit- 
ted. There  is  more  difficulty  in  enforcing  contribution  at  law  than  in 
equity.  Contribution  depends  rather  upon  principles  of  equity,  than 
upon  contract.  "  The  obligation  arises  not  from  the  agreement,  but  from 
the  nature  of  the  relation,  or  quasi  ex  contractu  ;  and  as  far  as  courts  of 
law  have,  in  modern  times,  assumed  jurisdiction  upon  this  subject,  it  is, 
as  Lord  Eldon  said,  upon  the  ground  of  an  implied  assumpsit."3  Lord 
Eldon  in  the  same  case  said,  that  the  modern  jurisdiction  of  the  courts  of 
law  was  attended  with  difficulties,  when  the  sureties  were  numerous  ;  and 
especially,  since  it  has  been  held  that  separate  actions  may  be  brought 
against  different  sureties,  for  their  respective  proportions. 

The  statute  in  relation  to  division  fences,  between  the  owners  of  adjoin- 
ing lands,  is  based  upon  the  doctrine  that  where  there  is  an  equality  of 
benefit,  there  should  be  an  equality  of  burden.4  At  common  law,  the 
tenant  of  a  close  was  not  bound  to  fence  against  an  adjoining  close,  unless 
by  prescription  ;  and  if  bound  by  prescription  to  fence  his  close,  he  was 
not  bound  to  fence  against  any  cattle  but  such  as  were  rightfully  in  the 

'  (  iimpbell  v.  Messier,  4  J.  Ch.  R.  334.        3  Craythorne  v.  Swinburne,  14Ves.l64. 
1  1,1.  *  1  R.  S.  353,  part  1,  oh.  9,  tit.  4,  art.  4 


Ch.  2.]  Division  Fences.  Tiff 

adjoining  close.  If  not  bound  at  common  law  to  fence  his  land,  lie  wag 
nevertheless  bound  at  his  peril,  to  keep  his  cattle  on  his  own  ground,  and 
prevent  them  from  escaping.1 

In  the  ordinary  case  of  a  turnpike  running  through  the  lands  of  an 
individual,  neither  the  turnpike  company  or  the  public  has  any  interest 
in  protecting  such  road  against  encroachments  of  cattle  or  other  animals 
from  the  adjacent  lands,  as  such  encroachments  will  not  materially  affect 
the  ordinary  use  of  the  road.  And  neither  law  or  equity  will  compel  the 
turnpike  company  to  maintain  fences,  from  which  it  is  to  derive  no  bene- 
fit. The  case  is  otherwise  with  respect  to  a  railroad  company,  which 
has  a  deep  interest  in  securing  their  road  against  the  encroachments  of 
cattle,  sheep  and  swine  from  the  adjacent  lands.  If  the  owners  of  the 
adjacent  lands  elect  to  let  their  lands  lie  open  to  commons,  the  railroad 
company  will  of  necessity  be  compelled  to  make  the  whole  of  the  partition 
fence,  to  secure  itself  against  encroachments  from  cattle.  If  such  owner 
finds  it  necessary  to  have  his  land  enclosed,  either  for  the  purpose  of 
cultivation,  or  to  restrain  his  own  cattle,  he  will  have  an  equitable  claim 
upon  the  railroad  company  to  make  and  support  one  half  of  the  partition 
fence.  Although  the  case  does  not  come  within  the  letter  of  the  statute, 
(1  R.  S.  353,  §  30.)  it  comes  clearly  within  the  equitable  principle  adopted 
by  the  legislature  ;  that  when  the  owners  of  adjoining  lands  are  to  receive 
a  common  benefit  from  a  division  fence  between  them,  each  shall  contribute 
a  moiety  towards  the  erection  and  support  of  such  fence,  so  long  as  the 
common  benefit  continues.  In  this  case,  says  Chancellor  Walworth, 
equity  will  compel  the  railroad  company  and  the  adjoining  land  owner 
to  contribute  equally  towards  the  erection  and  maintenance  of  the  par- 
tition fence.  And  if  either  shall  neglect  or  refuse  to  make  or  repair  his 
or  their  proportion  of  such  fence,  after  reasonable  notice,  the  other  may 
make  the  whole,  and  recover  the  contributory  share  of  the  one  so  neg- 
lecting or  refusing,  in  the  equitable  action  of  assumpsit.2 

This  principle  of  equitable  contribution  between  the  owners  of  adjoin 
ing  lands  is  not  new ;  neither  does  it  depend  for  its  support  upon  express 
statutory  provision.     It  was  originally  derived  from  the  civil  law,  and  is 


1  3  Kent's  Cora.  438.    Rust  v.  Low,  6  v.  Lathrop,  5  Greenl.  356.     Stackpole  v 

Mass.  90.     Hollady  v.  Marsh,  3  Wend.  Healy,  16  Mass.  33. 
142.     Per  Walworth,  Ch.  in   Clark  v.        a  In  matter  of  R.  and  S.  Railroad,  4 

Brown,  18  Wend.  221.    Bush  v.  Brain-  Paige,  554,  555. 
»rd,  1  Co  wen,  78,  79,  and  note.    Little 


118  Of  Account.  fCk   4. 

constantly  acted  upon  in  those  countries  where  the  equitable  prinf  lplea 
of  the  civil  law  regulate  the  rights  of  vicinage.' 

In  New- York,  the  general  railroad  act  of  1850  has  cast  the  burden  of 
erecting  and  maintaining  the  fences,  on  the  sides  of  their  roads,  upon  the 
respective  companies,  and  has  prescribed  the  height  and  strength  of 
such  fenee.2  In  most  of  the  states,  it  is  presumed,  there  are  statutory 
regulations  with  respect  to  division  fences,  which  supersede,  in  a  great 
measure,  a  resort  to  a  court  of  equity  for  relief. 

The  provisions  of  the  New- York  revised  statutes,  (1  vol.  353,)  are  made 
more  particularly  with  reference  to  lands  occupied  for  farm  purposes  in 
the  country.  They  are  inapplicable  to  the  division  fences  and  walls 
between  adjoining  lots  in  cities  and  villages,  except  so  far  as  they  estab- 
lish the  equitable  principle,  that  equality  of  benefit  should  be  accompa- 
nied with  equality  of  burden.  Hence,  in  most  large  cities  and  towns, 
there  are  special  regulations,  by  which  the  rights  and  remedies  of  the 
owners  of  urban  property  are  guarded.3  It  is  presumed,  that  in  the 
absence  of  special  laws  on  the  subject,  the  equitable  rule,  requiring  each 
party  to  bear  his  just  proportion  of  a  common  burden,  would  be  enforced 
in  towns  and  villages  where  the  settlements  are  compact. 

The  doctrine  of  contribution  has  been  applied  to  charges  created  upon 
land  divided  into  lots.  Thus,  where  six  separate  lots  were  mortgaged, 
and  the  mortgagee,  afterwards,  released  four  of  the  lots  from  the  mort- 
gage, leaving  the  original  debt  to  stand  charged  on  the  remaining  two, 
it  was  held  that  the  two  lots  were  chargeable  with  their  ratable  propor 
tion  only  of  the  original  debt  and  interest,  according  to  the  relative  value 
of  the  six  lots  at  the  date  of  the  mortgage.  When  land  is  charged  with 
a  burden,  each  part  ought  to  bear  its  due  proportion  of  the  charge ;  and 
equity  will  compel  each  part  to  a  just  contribution.4  And  the  creditor 
cannot,  by  any  act  or  assignment  of  his,  deprive  the  co-creditors  or  owners 
of  the  land  of  their  right  of  contribution  against  each  other.5  The  court 
will  compel  the  creditor  to  aid  the  contribution,  by  assigning  his  bonds 
and  securities  to  the  debtor  or  surety,  or  owner  of  the  land  whom  he 
charges  with  the  whole  demand,  and  he  will  not  be  permitted,  voluntarily, 
to  defeat  this  right.6 


■  Id  matter  of  R.  and  S.  Railroad,  4        *  Stevens  v.  Cooper,  1  J.  Ch.  R.  425. 
Paige,  556.     Code  Nap.  art.  653  to  670.        6  Id. 
Bell's  Law  of  Scotland,  279,  art.  1086.  6  Millard  v.  CI  eesborough,  1  J.  Ch.  R 

»  Act  of  1850,  p.  233,  §  44.  409. 

•  3  Kent's  Com.  438,  et  seq.  and  notes. 


Ck  2.1  Contribution.     Insurance.  119 

If  a  man  be  seised  of  three  acres  of  land,  and  is  bound  by  a  judgment, 
or  recognizance,  &c,  and  aliens  one  acre  to  A.,  another  to  B.,  and  the 
third  descends  to  his  heir ;  in  this  case,  if  the  execution  be  sued  only 
against  the  heir,  he  shall  not  have  contribution,  for  he  comes  to  tho 
land  without  consideration,  and  sits  in  the  seat  of  his  ancestor.  But  if 
the  alienation  be  to  two  or  more  standing  in  equali  jure  and  one  is  com- 
pelled to  pay,  he  shall  have  contribution.  The  same  rule  applies  to  par- 
ceners, who  make  partition.  If  one  has  to  pay  the  whole  charge,  she 
shall  have  contribution  against  her  companions.1 

The  rule  m  this  state,  with  respect  to  successive  purchasers  of  parts 
of  land  mortgaged,  is  different.  Thus,  Chancellor  Walworth  in  one 
case  said,  where  lands  belonging  to  several  persons  are  covered  by  a 
morto-age  given  by  the  person  from  whom  they  all  derive  title,  the  lands 
last  sold  by  him  are  first  liable  to  satisfy  the  incumbrance  ;  and  the  sev- 
eral parcels  must  be  sold  by  the  master  in  the  inverse  order  of  their 
alienation.  When  the  purchase  money  has  been  paid  in  good  faith,  the 
first  purchaser  has  the  prior  equity,  although  the  consideration  was  not 
actually  paid  until  after  other  portions  of  the  land  had  been  purchased 
and  paid  for  by  the  vendee.2 

The  ground  of  the  distinction  is  that  a  mortgage  is  a  specific  lien,  and 
is  analogous  to  a  rent  charge  issuing  out  of  the  land,  whereas  a  judgment 
is  the  personal  obligation  of  the  debtor,  and  the  charge  on  the  land  is 
only  by  way  of  security.  Hence,  it  seems,  that  there  is  no  contribution 
between  purchasers  in  succession,  at  different  times,  of  different  parts  of 
the  estate  of  a,  judgment  debtor.3  Whenever  the  judgment  cj&diter  dis- 
poses of  a  part  of  the  land  held  by  the  judgment,  the  purchaser  has  an 
equitable  right  to  have  the  judgment  discharged  out  of  the  residue  of  the 
property.  Although  a  subsequent  purchaser  has  an  equal  equity  to  have 
the  land  which  he  has  purchased  and  paid  for  discharged  from  the  lien  of 
the  judgment,  as  against  the  debtor,  the  first  purchaser,  having  the  prior 
equity,  must  be  preferred.  Where  the  equities  are  equal,  and  neithei 
has  the  legal  right,  the  maxim,  qui  prior  est  in  tempore  potior  est  injure^ 
prevails.4 

As  the  object  of  insurance  is  to  indemnify  the  insured,  it  follows  that, 
in  the  case  of  double  insurance,  if  one  underwriter  pays  the  entire  loss, 
he  is  entitled  to  contribution  from  the  other  underwriters.     The  insured 


1  Herbert's  case,  3  Co.  12.  '  Clows  v.  Dickinson,  5  J.  Ch.  R.  235. 

■  Gouveneur  v.  Lynch,  2  Paige,  300.        Gill  v.  Lyon,  1  id.  447. 

*  James,  v.  Hubbard,  1  Paige,  228,  234 


J  20  Of  Account.  [Ch.  2 

in  such  case,  though  entitled  to  but  one  satisfaction,  may  lecover  the 
whole  amount  of  his  loss  agamst  either  of  the  underwriters,  and  leave 
the  latter  to  recover  a  ratable  satisfaction  from  the  other  insurers. 
Where  a  policy  of  insurance  contains  a  clause,  that  "  in  case  of  any  other 
insurance  upon  the  property  insured,  whether  prior  or  subsequent  to  the 
date  of  the  policy,  the  insured  should  not,  in  case  of  loss  or  damage,  be 
entitled  to  demand  or  recover  on  the  policy  any  greater  portion  of  the 
loss  or  damage  sustained,  than  the  amount  insured  shall  bear  to  the 
whole  amount  insured  on  said  property,"  the  defendant  is  not  entitled  to 
contribution  against  other  underwriters  who  have  signed  a  similar  policy. 
In  such  case  each  is  bound  to  pay  his  proportionate  share  of  the  loss, 
which  will  be  adjusted  when  the  verdict  is  given.2  But  if  one  policy 
contain  this  clause,  and  two  others  do  not,  and  the  latter  have  paid  a 
sum  equal  to  the  whole  loss,  this  will  be  a  defense  to  the  action  on  the 
policy  containing  this  clause,  the  underwriter  of  which  is  liable  to  con- 
tribute to  the  underwriters  who  have  paid.3 

In  case  of  a  fire  policy  for  $20,000,  on  a  stock  of  goods  worth  $35,000, 
a  fire  broke  out  which  endangered  the  goods,  to  save  which,  and  the 
building  in  which  they  were  contained,  some  blankets  were  procured 
by  the  insured  to  hang  on  the  side  of  the  building,  which,  in  that  situation 
being  constantly  kept  wet,  served  to  check  the  fire,  and  contributed  ma- 
terially to  save  the  building  and  its  contents.  The  blankets  being  injured 
in  this  manner  so  as  to  be  of  no  value,  the  assured  claimed  the  whole 
value  of  them  against  the  underwriters,  who  were,  by  the  terms  of  the 
policy,  liable  for  the  whole  damage  to  the  goods  by  fire,  not  exceeding  the 
amount  insured. 

On  the  part  of  the  underwriters,  it  was  contended,  that  as  the  blankets 
were  used  and  destroyed  to  save  the  building  as  well  as  all  the  goods,  the 
several  parties  interested  were  liable  proportionally  for  this  damage  ;  that 
is,  the  underwriters,  on  the  $20,000  insured  ;  the  assured  on  $15,000, 
not  covered  by  the  policy,  and  on  $5,000,  the  value  of  his  lease  of  the 
building ;  and  the  owner  of  the  building  on  $5000,  the  value  of  the 
building  over  that  of  the  lease  ;  making  the  underwriters  liable  for  four 
ninths  of  the  damage  to  the  blankets. 

The  court  said,  that  the  assured  could  claim  only  on  the  ground  of  a 
sacrifice  made  for  the  preservation  of  the  property,  for  a  proportion  of 
which  they  are  equitably,  if  not  legally,  entitled  to  recover.     They  ad- 

\ 

2  Lucas  v.  Jefferson  Ins.  Co.,  6  Cowen,        s  Id.  635. 
637.     Murdock  v.  Chenango  Co.  Mut.  Ins.        s  Lucas  r.  Jefferson  Ins.  Co.  6  Cowen, 
Co  2  Coinst.  210,  G35. 


h  2.J  Contribution.     Average.     Jettison.  121 

wit  that  in  general,  on  fire  policies,  it  was  customary  to  pay  the  whole 
loss.  But  as  the  claim  for  destroying  the  blankets  was  not  within  the 
contract,  it  was  reasonable  that  the  assured  should  bear  a  proportion  of 
the  sacrifice  made  for  the  common  benefit.  And  they  accordingly  held 
that  the  loss  should  be  borne  in  proportion  to  the  amount  which  the  par- 
ties had  at  risk.1  In  this  case,  the  relief  was  granted  in  an  action  at 
law  ;  but  it  is  obvious  that  equity  will,  in  general,  aiFord  a  more  compre- 
hensive remedy  and  embrace  all  the  parties  in  a  single  action,  which  was 
not  done  in  the  case  in  Pickering. 

The  doctrine  of  average  gives  rise  to  a  variety  of  questions,  which  are 
ill  suited  to  an  action  at  law  ;  but  which  can  be  more  conveniently  settled 
in  a  court  of  equity.  Thus,  expenses  incurred,  sacrifices  made,  or  dam- 
ages sustained  for  the  common  benefit  of  ship,  freight  and  cargo,  consti- 
tute general  or  gross  average.  A  loss  which  is  not  incurred  for  the 
general  benefit  is  a  particular  average,  or  total  loss.2 

In  order  to  constitute  a  basis  for  a  contribution  for  an  expense  or 
sarcifice,  it  must  be  occasioned  by  an  apparently  imminent  peril.  The 
goods  must  not  be  swept  away,  by  the  violence  of  the  waves,  for  then 
the  loss  falls  upon  the  merchant  or  his  insurer,  but  they  must  be  inten- 
tionally sacrificed,  by  the  mind  and  agency  of  man,  for  the  safety  of  the 
ship  and  the  residue  of  the  cargo.3 

Damage  to  vessels  by  collision  with  each  other,  whether  with  or  with- 
out fault,  or  by  fault  of  both  vessels,  not  being  an  intentional  sacrifice, 
m  not  a  subject  of  general  average  by  the  laws  of  England  or  the 
United  States.4 

A  jettison  is  the  throwing  overboard  of  a  part  of  the  cargo,  or  any  article 
en  board  of  a  ship,  or  the  cutting  and  casting  away  of  mast,  spars,  rig- 
ging, sails,  or  other  furniture,  for  the  purpose  of  lightening  or  relieving 
the  ship  in  case  of  necessity  or  emergency.  A  jettison  is  only  permit- 
ted in  case  of  extreme  severity,  as  where  the  ship  is  in  danger  of  per- 
ishing by  the  fury  of  a  storm,  or  is  laboring  upon  rocks  or  shallows,  or  is 
closely  pursued  by  pirates  or  enemies ;  and  then,  if  the  ship  and  residue 
of  the  cargo  be  saved  by  means  of  the  sacrifice,  nothing  can  be  more 
reasonable,  than  that  the  property  saved  should  bear  its  proportion  of 
the  loss.5     Where  it  becomes  necessary  for  the  general  safety  to  make 

1  Welles  v.  Boston  Ins.    Co.    6  Pick.         •  3  Kent's  Com.  233. 
182.  •  o  Phil,  on  Ins.  60. 

■  2  Phil,  on  Ins.  64.  5  3  Kent's  Com.  233.  2  Phil.  Ins.  68,  69. 

EQ.  J  UK.  1G 


122  Of  Account.  [Oh.  2 

%  jettison,  or  other  sacrifice  of  a  part  of  the  interests  at  risk,  the  loss 
must  be  made  good  by  contribution  to  be  assessed  upon  what  is  saved  of 
ship,  cargo  and  freight. 

Before  contribution  takes  place,  it  must  appear  that  the  goods  sacrj 
ficed  were  the  price  of  safety  to  the  rest ;  and  if  the  ship  be  lost,  not 
withstanding  the  jettison,  there  will  be  ground  for  contribution.1 

In  this  country,  the  terms  partial  loss  and  average  are  understood 
by  commercial  men,  to  mean  the  same  thing;  and  average,  other  than 
general,  includes  every  loss  for  which  the  underwriter  is  liable,  ex- 
cept general  average  and  total  loss,  which  last  includes  total  loss  with 
salvage.  Partial  loss,  includes  both  general  and  particular  average,  and 
the  latter  term  includes  all  partial  losses,  except  general  average.2 

The  principle  of  this  general  contribution  is  known  to  be  derived  from 
the  ancient  law  of  Rhodes,  being  adopted  into  the  Digest  of  Justinian, 
with  an  express  recognition  of  its  true  origin.  The  rule  of  the  Rhodian 
law  is  this  :  "  If  goods  are  thrown  overboard  in  order  to  lighten  a  ship, 
the  loss  incurred  for  the  sake  of  all,  shall  be  made  good  by  the  contri- 
bution of  all."3  The  circumstances  under  which  they  may  be  thrown 
overboard  have  already  been  stated.  The  principle  has  been  confined  to 
a  sacrifice  of  property,  and  the  contribution,  to  the  property  saved  there- 
by.4 A  full  discussion  of  the  law  of  average  belongs  more  appropriately 
to  a  treatise  on  insurance,  or  on  the  law  relative  to  merchants'  ships  and 
shipping,  and  the  law  on  the  subject  will  be  found  in  books  devoted  to 
those  subjects.  The  present  object  is  to  show,  how  difficult  it  often  is 
to  apportion  and  adjust  losses  of  this  nature  in  an  action  at  law.  By 
the  general  rule  of  the  maritime  law,  in  all  cases  of  general  average, 
the  ship,  the  freight  for  the  voyage,  and  the  cargo  on  board,  are  to  con- 
tribute to  the  reimbursement  for  the  loss,  according  to  their  relative 
values.  The  value  of  the  property  sacrificed  for  the  common  preserva- 
tion must  first  be  ascertained,  and  then  the  value  of  the  several  inter- 
ests which  are  to  contribute  to  the  loss.  If  the  property  sacrificed  were 
owned  by  one  man,  and  the  property  saved  by  another,  the  rights  could 
be  adjusted  with  reasonable  facility  in  a  single  action  at  law.  But  it 
will  generally  happen,  that  the  property  sacrificed  for  the  common  good 
is  owned  by  different  individuals,  and  that  saved  belongs  to  different  and 
perhaps  hostile  interests.     In  such  cases  it  will  be  found  impracticable 


*3     Kent's    Corn.    235.      Crocket  v.        '  Abbott  on  Ship.  574,  575,  Story  &  Per- 

Dodge,  3  Fairf.  190.  kins'  ed. 

a  Per  Walworth,  Ch.  in  Wadsworth  v.        "  Story's  Eq.  Jur.  §  490. 
Pacific  Ins.  Co.  4  Wend.  39. 


Oh.  2.]  Contribution.     Lien.     Salvors.  123 

to  adjust  the  whole  matter,  in  a  single  action  at  law,  in  such  manner  as 
to  bind  all  the  parties,  and  to  apportion  the  loss  among  each  according  to 
the  principles  applicable  to  the  case.  A  court  of  equity  affords  facilities 
for  such  apportionments,  which  will  be  sought  in  vain  in  the  ordinary 
proceedings  of  a  common  law  action.1 

The  law  of  lien  often  gives  rise  to  matters  of  account,  and  for  this 
cause,  as  well  as  for  the  reason  that  it  prevents  a  multiplicity  of  actions, 
equity  entertains  jurisdiction.  A  lien  is  a  right  to  possess  and  retain 
property  until  some  charge  attaching  to  it  is  paid  or  discharged.  It  is 
not,  in  strictness,  either  a  jus  in  re  or  a,  jus  ad  rem;  that  is,  it  is  not  a 
property  in  the  thing  itself,  nor  does  it  constitute  a  right  of  action  for 
the  thing.  It  more  properly  constitutes  a  charge  upon  the  thing.2  At 
common  law  there  can  be  no  lien  without  possession.3  And  a  party  hav- 
ing a  lien  upon  goods  looses  it  when  he  voluntarily  parts  with  the  pos- 
session.4 In  maratime  law,  liens  exist  independently  of  possession, 
either  actual  or  constructive.  In  courts  of  equity,  the  term  lien  is  used 
as  synonymous  with  a  charge  or  incumbrance.5  Thus  judgments  of 
courts  of  record,  which  by  statute  "  bind  and  are  a  charge"  upon  the 
lands  of  the  debtor  from  the  time  of  docketing,6  are  said,  in  equity,  to  be 
a  lien  upon  such,  lands.  And  an  execution  against  goods  and  chattels, 
which  by  statute  "  bind"  the  same  from  the  delivery  thereof  to  the  proper 
officer  to  be  executed,  are  treated  in  equity  as  liens  upon  the  said  prop- 
erty from  the  said  time.7 

When  property  is  found  derelict  at  sea,  or  elsewhere,  within  the  limits 
of  admiralty  and  maritime  jurisdiction,  the  salvor,  by  whose  services, 
personal  risk  and  exposure  it  is  saved,  has  a  right  to  hold  it  until  paid  his 
reasonable  salvage ;  and  when  taken  from  him  wrongfully,  even  by  the 
general  owner,  he  has  a  right  to  bring  replevin  in  a  common  law  court, 
without  resorting  to  admiralty.8  The  question  whether  personal  risk  is 
incurred,  in  saving  the  property,  does  not  affect  the  right  of  the  salvor, 
but  only  the  amount  of  his  compensation.  These  principles  were  applied 
Sy  the  New- York  court  of  appeals,  in  the  case  of  the  loss  of  a  quantity 
■)f  wool,  on  board  of  a  canal  boat,  which  was  occasioned  by  the  sinking  of 

1  Ilallett  v.  Bourfield,  18  Ves.  187.  6  Peck  v.  Jenness,  per  Grier,  J.  7  How 

5  Story's  Eq.  Jur.  §  506.    Burrell's  Law  620. 
Diet.  tit.  Lien.  «  2  R.  S.  359,  §  3. 

8  Hammond  v.  Barclay,  2  East.   235.        7  Id.  365. 
^eclc  v.  Jenness,  7  How.  620.  8  Baker  v.  Hoag,  3  Seld.  555. 

4  McFarland  v.  Wheeler,  26  Wend.  467. 


124  Of  Accouni  fCh.  2. 

the  canal  boat,  on  the  Hudson  river,  where  the  tide  ebbs  and  flows,  by  ? 
collision  with  a  steamboat.  The  plaintiff,  oy  whose  exertions,  expense 
and  personal  risk  the  property  was  recovered,  was  held  to  have  a  lien 
thereon  for  his  reasonable  salvage.1  Had  this  property  belonged  to  dif- 
ferent owners,  it  is  obvious  that  a  court  of  law  could  not  have  apportioned 
the  salvage  among  the  parties  in  interest,  as  conveniently  as  a  court  of 
equity. 

Factors  and  agents  have  a  lien  on  property  intrusted  to  them  until 
some  demand  of  theirs  be  satisfied.  This  lien  is  created  either  by  com- 
mon law,  or  by  the  usage  of  trade,  or  by  the  express  agreement,  or  par- 
ticular usage  of  the  parties.  The  convenience  of  commerce  and  natural 
justice  are  on  the  side  of  liens.2  A  lien,  said  Tindal,  Ch.  J.,3  can  only 
arise  in  one  of  three  ways ;  either  by  express  contract ;  by  a  general 
course  of  dealing  in  the  trade  in  which  the  lien  is  set  up ;  or  from  the 
particular  circumstances  of  the  dealing  between  the  parties. 

A  lien  is  often  sustained  in  equity  when  it  is  unknown  in  law,  as  in  the 
sale  of  land,  where  a  lien  exists  for  the  unpaid  purchase  money.4  It  is 
superior  to  the  lien  of  a  prior  judgment  against  the  vendee.5  It  exists 
against  subsequent  purchasers  and  incumbrancers,  when  they  advance  no 
new  consideration,  or  have  notice.6  A  person  having  an  equitable  lien 
upon  land  for  the  unpaid  purchase  money,  may  come  into  a  court  of  equity 
in  the  first  instance  to  enforce  such  lien  ;  without  resorting  to  a  suit  at 
law  to  recover  the  amount.7  Thus  if,  upon  the  sale  of  a  farm,  the  pur- 
chaser should  pay  for  the  half  of  it  in  good  money,  and  the  other  half  in 
the  worthless  bills  of  a  broken  and  insolvent  bank,  from  which  nothing 
could  be  obtained,  the  vendee  fraudulently  representing  such  bills  to  be 
good  and  collectible,  the  vendor  would  have  the  right  to  elect,  either  to 
rescind  the  sale  and  have  a  reconveyance  of  the  land,  or  to  charge  the 
land  itself  with  the  half  of  the  purchase  money  which  remained  unpaid, 
as  an  equitable  lien  upon  such  land.8  A  lien  is  not  confined  to  mere  la- 
bor and  services  on  the  specific  property,  or  connected  therewith,  but  is 
often,  by  the  usages  of  trade,  extended  to  cases  of  a  general  balance  of 

1  Baker  v.  Hoag,  3  Seld.  555.  5  Arnold  v.  Patrick,  6  Paige,  310. 

2  Per  Lord  Mansfield,  in  Green  v.  6  Hallock  v.  Smith,  3  Barb.  S.  C.  R 
Farmer,  4  Burr.  2221  267. 

3  Ferguson  v.  Norman,  5  Bing.  K  C.  7  Bradley  v.  Bosley,  1  Barb.  Ch.  Pv.  152. 
76.  8  Id.  per  Walworth,  Ch.  1  Barb.  Ch.  R, 

4  Girson   v.  Green,  1  J.  Ch.  R.   308.  152. 
Clark  v.  Hull,  7  Paige,  382. 


Ch.  2.J        Contribution.     Pacing  off  Incumbrances.  125 

account  in  favor  of  factors  and  others.1  The  mere  relation  of  principal 
and  factor  does  not  confine  the  rights  of  the  latter  to  recover  for  advances, 
to  the  mere  fund  deposited  ;  but  such  advances  are  made  on  the  joint 
credit  of  the  fund  and  the  person  ;  to  which  this  qualification  may  be 
added,  that,  from  the  nature  of  the  contract,  resort  must  first  be  had  to 
the  fund,  if  it  can  be  made  available,  before  the  principal  is  liable.2 

In  most  of  the  cases  which  have  been  put,  the  adjustment  of  the  lien 
leads  to  matters  of  account  ;  and  often,  from  the  complicated  nature  of 
the  transaction,  and  the  multiplicity  of  parties,  a  resort  to  equity  is  ren- 
dered indispensable.  The  subject  of  lien  will  recur  under  other  heads, 
where  it  will  be  viewed  in  other  aspects. 

The  question  sometimes  arises,  as  to  the  party  by  whom  the  interest 
on  mortgages  or  other  incumbrances  should  be  paid.  The  estate  may  be 
held  by  a  tenant  for  life,  subject  to  an  incumbrance,  and  the  question 
whether  he  is  bound  to  pay  any,  and  if  so,  what  portion  of  the  principal, 
or  any  portion  of  the  interest,  may  be  important  to  be  known.  In  Eng- 
land, the  general  rule  seems  to  be,  that  the  tenant  for  life  of  an  equity 
of  redemption  is  bound  to  keep  down  and  pay  the  interest,  but  he  is  un- 
der no  obligation  to  pay  off  the  principal.3 

The  distinction  in  the  English  books  between  the  payment  of  an  in- 
cumbrance by  tenant  in  tail,  and  tenant  for  life,  is  of  no  practical  use  with 
us,  since  estates  in  tail  are  converted  into  estates  in  fee.  The  payment 
of  an  incumbrance  by  tenant  in  tail  was  treated  like  a  payment  by  the 
owner  of  the  fee,  because,  by  fine  or  recovery,  he  could  become  the  abso- 
lute owner  of  the  estate.  Being  in  possession,  his  payment  would  ex- 
tinguish the  incumbrance.  It  is  otherwise  with  respect  to  tenant  for  life. 
His  paying  off  an  incumbrance  would  make  him  a  creditor  to  the  amount 
f  aid,  upon  the  ground  that  with  his  limited  interest  there  can  be  no  pre- 
sumption, that  he  could  intend  to  exonerate  the  estate.4 

It  is  the  duty  of  the  tenant  for  life  to  pay  the  ordinary  taxes,  out  of 
the  rents  and  profits  of  the  estate,  but  it  seems  that  assessments  going 
to  the  permanent  benefit  of  the  inheritance  must  be  apportioned.5  The 
former  rule  in  England,  with  respect  to  the  discharge  of  incumbrances, 
between  the  tenant  for  life  and  the  remainderman  or  reversioner,  was  lo 
require  the  tenant  for  life  to  pay  one  third,  and  the  remainderman  or  re- 

1  Paley  on  Agency,  by  Dunlap,  ch.  2,  8  Saville  v.  Saville,  2   Atk.  403,  464. 

§  3,  p.  127.  Shrewsbery  v.  Shrewsbery,  1  Ves.  jr.  233. 

'  Curlies  v.  Gumming,  6  Cowen,  184,  *  Id. 

per  Woodworth,  J.  Burrell  v.  Philips,  1  6  Cairnts  v.  Chabert,  3  Ed.  Ch.  R.  8154 
Gal'    860.     F'dsh  v.  Dickson,  1  Mason,  9. 


126  Op  Account.  [Ch.  2. 

versioner  tlie  other  two  thirds.1  But  the  rule  is  now  entirely  exploded 
in  England,  and  a  far  more  reasonable  one  adopted.  It  is  this  :  that  the 
tenant  shall  contribute,  beyond  the  interest,  in  proportion  to  the  benefit 
he  derives  from  the  liquidation  of  the  debt,  and  the  consequent  cessation 
of  annual  payments  of  interest  during  his  life,  (which  of  course  Avill  de 
pend  much  upon  his  age,  and  the  computation  of  the  value  of  his  life  ;)  and 
it  will  be  referred  to  a  master,  to  ascertain  and  report  what  proportion  of 
the  capital  sum  due  the  tenant  for  life,  ought,  upon  this  basis,  to  pay, 
and  what  ought  to  be  borne  by  the  remainderman,  or  reversioner.2  If 
the  estate  is  sold  to  discharge  incumbrances,  (as  the  incumbrancers  may 
insist  that  it  shall  be,)  in  such  a  case,  the  surplus  beyond  what  is  neces- 
sary to  discharge  the  incumbrances  is  to  be  applied  as  follows  :  the  in- 
come thereof  is  to  go  to  the  tenant  for  life,  during  his  life ;  and  then  the 
whole  capital  is  to  be  paid  over  to  the  remainderman,  or  reversions  . 

These  principles  are  applicable  in  actions  for  the  partition  of  lands, 
wherever  the  estate  of  a  tenant  in  dower,  or  by  the  curtesy,  or  for  life 
to  the  whole  or  any  part  or  share  of  the  premises  in  question  exists,  and 
the  person  entitled  to  such  estate  is  mado  a  party.  In  such  case  the 
court  is  to  consider  first  whether  such  estate  ought  to  be  excepted  from 
such  sale,  or  whether  the  same  should  be  sold.  If  a  sale  of  the  premises 
including  such  estate  be  ordered,  the  estate  and  interest  of  every  such 
tenant  or  person  is  declared  to  pass  thereby  ;  and  the  purchaser  holds  the 
premises  free  and  discharged  from  all  claims  by  virtue  of  any  such  estate 
or  interest,  whether  the  same  be  to  any  undivided  share  of  a  joint  tenant, 
or  tenant  in  common,  or  to  the  whole  or  any  part  of  the  premises  sold. 
Upon  such  sale  being  made  of  any  such  interest  or  estate,  the  court 
directs  the  payment  of  such  sum  in  gross,  out  of  the  proceeds  thereof, 
to  the  person  entitled  to  such  estate  in  dower,  tenancy  by  the  curtesy,  or 
tenancy  for  life,  as  shall  be  deemed,  upon  the  principles  of  law  applicable 
to  annuities,  a  reasonable  satisfaction  for  such  estate  or  interest,  and 
which  the  person  so  entitled  shall  consent  to  accept  in  lieu  thereof,  by  an 
instrument  under  seal,  duly  acknowledged  or  proved.4  A  similar  rule 
exists  for  satisfying  the  tenant  in  dower,  where  the  estate  of  a  de- 
1  person  is  sold  by  order  of  the  surrogate  for  the  payment  of  debts.* 

1  Powell  on  Mortgages,  ch.  11,  p.  311.  an  v.  Backhouse,  2  "Ves.  &  Beame,  Go, 

Slirewsbery  v.   Shrewsbery,   1   Ves.  jr.  70,  79. 

233.     Faulkner  v.  Daniel,  3  Hare,  199,  3  See  same  cases,  and  Lloyd  v.  Johnes, 

217.  9  Ves.  37. 

a  Slory's  Eq.  §  487.     Powell  on  Mortg.  4  2  R.  S.  325,  §§  50,  51,  52.     Harwood 

ch.  11,  pp.  311,  312.    Mr.  Coventry,  note  v.  Kirby,  1  Paige,  469. 

M.     White  v.  White,  4  Ves.  jr.  33.     9  id.  5  >2  R.  9.  106,  ?  30. 
554.     Perhuyn  v.  Hughs,  5  id.  107.    Al- 


Oh.  2.]  Apportionment.     Eviction.  127 

Questions  of  this  nature  can,  in  general,  he  better  adjusted  in  a  court  of 
equity  than  at  law.  Their  application  will  be  seen,  when  we  come  to  con 
sider  the  subject  of  partition  and  dower. 


Apportionment  forms  another  head  of  equity  jurisdiction,  referable 
to  the  action  of  account.  Lord  Coke  says,  this  cometh  of  the  word  portio, 
quasi  partio,  which  signifieth  a  part  of  the  whole,  and  apportion  signi- 
fieth  a  division,  or  partition  of  a  rent,  common,  &c,  or  a  making  of  it  into 
parts.1 

There  are  several  points  to  be  noticed  in  relation  to  the  apportionment 
of  rents.  . 

There  are  two  modes  of  apportioning  rent,  one  by  granting  the  rever- 
sion of  part  of  the  land  out  of  which  the  rent  arises  ;  the  other,  by 
granting  part  of  the  rent  to  one  person,  and  part  to  another.2 

It  was  a  principle  of  the  common  law,  that  an  entire  contract  could  not 
be  apportioned.  The  convenience  of  mankind  dictated  the  necessity  of 
an  apportionment  of  rent,  in  a  variety  of  cases.  It  may  sometimes  be 
apportioned  by  the  act  of  the  parties,  and  sometimes  by  the  act  of  the 
law.3  Thus,  where  the  grantee  of  a  rent-charge  releases  part  of  the  rent 
to  the  tenant,  such  release  will  not  extinguish  the  whole  rent,  but  the 
part  not  released  will  still  continue.4 

As  a  rent  service  is  something  given  by  way  of  retribution  to  the 
lessor,  for  the  use  and  occupation  of  the  land  demised,  the  lessor's  title 
to  the  rent  is  founded  on  the  principle,  that  the  land  demised  is  enjoyed 
by  the  tenant.  If,  therefore,  the  tenant  be  by  any  means  deprived  of  the 
land  demised,  the  obligation  to  pay  the  rent  ceases.  If  the  tenant  be 
evicted  from  the  lands  demised  to  him,  he  will  thereby  be  discharged 
from  payment  of  the  rent.5  The  tenant  is  liable  in  such  cases  to  the 
payment  of  rent  which  became  due  before  the  eviction,  because  the  obli- 
gation continues  as  long  as  the  consideration.  But  if  the  tenant  be 
evict  id  by  a  title  paramount,  before  the  day  appointed  for  the  payment, 
such  eviction  will  discharge  the  tenant  from  the  payment  of  any  part  of  it.6 

The  rules  on  the  subject  of  eviction  were  thus  stated  by  Spencer,  senator, 

1  Co.  Litt.  147,  b.  6  Cruise's  Dig.  tit.  Rent,   ch.   3,   §  1. 

2  Bliss  v.  Collier,  by  Abbott,  Ch.  J.,  5    Bordman  v.  Osborn,  23  Pick.  299. 
Barn.  &  Aid.  87G.  s  Cruise's  Dig.  Rent,  ch.  3,  §  2. 

4  Cruise's  Dig.  tit.  Bent,  ch.  3,  §  22. 
•Id. 


128  Of  Account.  [Ch.  2 

in  the  court  of  errors  of  New- York  :l  "  The  lessor  is  not  entitled  to  re- 
cover rent  in  the  following  cases  :  1st,  If  the  lands  demised  be  recovered 
by  a  third  person,  by  a  superior  title,  the  tenant  is  discharged  from  the 
payment  of  rent  after  eviction  by  such  recovery  :  2d,  If  a  part  only  of 
the  lands  be  recovered  by  a  third  person,  such  eviction  is  a  discharge  only 
of  so  much  of  the  rent  as  is  in  proportion  to  the  value  of  the  land  evicted  : 
3d,  If  the  lessor  expel  the  tenant  from  the  premises,  the  rent  ceases: 
4th,  If  the  lessor  expel  the  tenant  from  a  part  only  of  the  premises,  the 
tenant  is  discharged  from  the  payment  of  the  whole  rent ;  and  the  reason 
for  the  rule,  why  there  shall  be  no  apportionment  of  the  rent  in  this  case, 
as  well  as  in  that  of  an  eviction  by  a  stranger,  is,  that  it  is  the  wrongful 
act  of  the  lessor  himself,  that  no  man  maybe  encouraged  to  injure  or  dis- 
turb his  tenant  in  his  possession,  whom,  by  the  policy  of  the  feudal  law,  he 
ought  to  protect  and  defend."  In  the  case  just  cited,  it  was  held,  by  the 
court  of  errors,  that  where  the  lessor  was  guilty  of  bringing  lewd  women 
under  the  same  roof  with  the  demised  premises,  though  in  an  apartment 
not  demised,  by  which  nocturnal  noise  and  disturbance  were  made  ;  and, 
in  consequence,  the  lessee  quitted  the  premises  and  remained  away  with 
his  family,  it  was  held  that  this  was  evidence  to  go  to  the  jury  under  a 
plea  of  eviction  by  the  landlord,  in  answer  to  a  declaration  for  the  rent ; 
and  that  the  jury  might,  upon  such  evidence,  find  the  plea  true ;  and 
that  the  lessor  would  thereby  be  barred  of  his  rent,  the  same  as  on  an 
actual  or  physical  entry  and  expulsion  of  the  tenant.2 

It  is  said,  in  Bacon's  Abridgment,  that  there  are  a  variety  of  opinions 
whether,  when  the  lessor  enters  wrongfully  into  a  part  of  the  demised 
premises,  the  entire  rent  shall  not  be  suspended  during  the  continuance 
of  such  tortious  entry ;  and  it  is  there  said  to  be  the  better  opinion,  and 
the  settled  law  at  this  day,  that  in  such  case  the  tenant  is  discharged 
from  the  payment  of  the  wliole  rent,  till  he  be  restored  to  the  whole 
possession.3 

And  when  the  books  speak  of  an  apportionment,  in  case  when  the 
lessor  enters  upon  the  lessee  in  part,  they  are  to  be  understood  when 
the  lessor  enters  lawfully,  as  upon  a  surrender,  forfeiture,  or  the  like. 
Thus,  if  a  man  be  seised  of  two  acres,  one  in  fee  and  another  in  tail,  and 
makes  a  lease  for  life  or  for  years  of  both  acres,  and  dieth,  and  the  issue 
in  tail  avoideth  the  lease,  the  rent  shall  be  apportioned.4 

When  the  action  to  recover  rent  is  founded  on  the  privity  of  estate, 

1  Dyett  v.  Pendleton,  8  Cowen,  728.  3  Bacon's  Abr.  tit.  Rent,  \L. 

8  Ogilvie  v.  Hull,  5  Hill,  52,  54.     Gil-        4  Id.    Co.  Litt.  148,  b. 
aooley  v.  Washington,  4  Conist.  217. 


Cjh.  S.j  Apportionment.    Eviction.  1-20 

the  eviction  of  the  tenant  by  a  paramount  title,  from  a  part  of  the  demised 
premises,  may  be  set  up  by  him  as  a  defense  pro  tanto.  In  such  cases 
the  rent  is  apportioned.1  And  when  apportioned,  it  is  to  be  done  accord- 
ing to  the  value  of  the  land.2     If  there  be  no  evidence  of  the  value  of 

o 

the  land,  the  rent  may  be  apportioned  according  to  the  quantity  of  land 
held  by  the  tenant.  Prima  facie,  it  was  said,  all  the  land  was  of  equal 
Value.  The  defendant  might  have  so  pleaded  as  to  require  the  appor- 
tionment to  be  made  according  to  value.3 

Although  a  tenant  cannot  deny  the  right  of  his  landlord  to  demise,  nor 
can  he  set  Up  an  outstanding  title  against  him,  he  may  become  the  pur- 
chaser of  the  reversion,  at  a  sheriff's  sale,  on  an  execution  against  the 
landlord;  or  he  may  acquire  the  interest  of  his  landlord  in  the  reversion 
as  a  redeeming  creditor,  when  the  reversion  has  been  sold  on  an  execu- 
tion against  the  landlord.  If  the  interest  of  the  landlord,  thus  acquired 
by  the  tenant,  extends  to  the  whole  of  the  demised  premises,  he  may  set 
it  up  in  bar  of  the  recovery  of  the  rent ;  but  when  it  includes  only  a 
part  of  the  demised  premises,  it  operates  only  in  diminution  of  damages. 
The  tenant,  in  the  latter  case,  may  demand  an  apportionment,4  So  whero 
a  person  who  has  a  rent  service,  purchases  part  of  the  land  out  of  which 
the  rent  issues,  the  whole  of  the  rent  service  is  not  thereby  discharged, 
but  only  a  part,  proportioned  to  the  quantity  of  the  land  purchased.5  So. 
also,  a  person  who  has  a  rent  service  may  release  a  part  of  it,  which  will 
not  determine  the  whole  rent,  but  only  the  part  released.6 

The  assignee  of  the  reversion  of  part  of  the  demised  premises  may 
maintain  covenant  against  the  lessee  for  not  repairing.7  A  reversioner 
may  sell  his  estate  in  parts  to  different  persons,  each  of  whom  will  be 
entitled  to  a  separate  portion  of  the  rent ;  or  if  the  reversioner  die,  leav- 
ing several  children,  his  estate  will  descend  to  them  by  operation  of 
law,  and  each  will  be  entitled  to  his  share.s 

If  a  moiety  of  a  reversion  be  extended  by  an  elegit,  the  rent  shall  be 
apportioned,  and  the  lessor  shall  still  enjoy  half  the  rent  as  incident  to 
the  reversion  that  remains  in  him.9  A  rent  service  at  common  law, 
is  apportioned  either  on  severance  of  the  land  from  which  it  issues,  or  of 
the  reversion  to  which  it  is  incident.     If  it  be  in  its  nature  indivisible, 

1  Stevenson  v.  Lambard,  2  East,  575.  •  Cruise's  Dig.  tit.  Rent,  ch.  3,  §  G.  Bac. 

Lansing  v.  Van  Alstyne,  2  Wend.  561.  Abr.  tit.  Rent,  M. 

a  Bac.  Abr.  tit.  Rent,  M.  7  Twytnan  v.  Pickard,  2  Barn.  &  Aid. 

■  Van  Rensselaer  v.  Jones,  2  Barb.  S.  105.                                                   ■ 

C.  R.  653.  »  Bank  of  Penn.   v.   Wise,   3  Watte, 

4  Nellis  v.  Lathrop,  22  Wend.  121.  394. 

*  Cruise's  Dig.  tit.  Rent,  ch.  3,  §  5.  •  Bac.  Abr.  Rent,  M. 

Eq.  Jujr.  17 


ISO  Of  Account.  fdi.  % 

as  one  day's  service,  and  the  lessee  assigns  a  part  of  the  premises,  the 
service  multiplies.1  Rent  is  apportioned  among  assignees  according  to 
the  value  of  their  portions,  and  not  the  number  of  acres  held  by  them 
respectively.2  And  if  there  be  no  proof  of  value,  the  apportionment  wili 
be  according  to  the  quantities.3 

The  doctrine  of  the  common  law,  that  an  entire  contract  could  not  be 
apportioned,  was  limited  to  personal  contracts,  and  did  not  extend  to  such 
as  run  with  the  land.4  Even  in  the  latter  eases,  equity  did  not  appor- 
tion rent  as  to  time.  Thus,  where  tenant  for  life,  leased  for  term  of  years, 
rendering  rent  half  yearly,  and  died  in  the  middle  of  the  half  year,  equity 
could  not  apportion  the  rent.5  Upon  this  occasion,  Lord  Chancellor  Cow- 
per  said :  u  There  are  several  remedial  statutes  relating  to  rents,  but  this 
is  casus  omissus  ;  the  law  does  not  apportion  rent  in  point  of  time,  and 
I  do  not  know  that  equity  ever  did  it.  This  is  an  aceident  which  the 
judgment  creditor  might  have  guarded  against  by*  reserving  the  rent 
weekly ;  so  that  it  is  his  fault,  and  becomes  a  gift  in  law  to  the  tenant." 
The  statute  of  11  G.  2,  ch.  19,  §  15,  has  in  certain  cases  altered  the  law 
as  to  the  apportioning  of  rents  in  point  of  time.  The  substance  of  this 
statute  has  been  adopted  in  New- York,  where  it  is  enacted,  that  every 
person  entitled  to  any  rents,  dependent  upon  the  life  of  any  other,  may, 
notwithstanding  the  death  of  such  other  person,  have  the  sam«  remedy 
for  the  recovery  of  all  arrears  of  such  rent,  that  shall  be  behind  and 
unpaid  at  the  deavh  of  such  other  person,  as  he  might  have  had  if  such 
person  was  in  full  life.  The  statute  also  gives  the  same  remedy  to  the 
executors  or  administrators  of  the  landlord  that  their  testator  or  intestate 
might  have  had,  if  living.  It  provides  further,  that  where  a  tenant  for 
life,  who  shall  have  demised  any  lands,  shall  die,  on  or  after  the  day  when 
any  rent  becomes  due  and  payable,  his  executors  or  administrators  may 
recover  from  the  under  tenant  the  whole  rent  due ;  if  he  die  before  the 
day  when  any  rent  is  to  become  due,  they  may  recover  the  proportion  of 
rent  which,  accrued  before  his  death.6  The  statute  of  4  William  4,  ch.  22, 
in  amendment  of  the  act  of  11  Geo.  2,  declared  that  all  rents  service, 
rents  charge,  and  other  rents,  annuities,  dividends,  and  all  other  pay- 
ments, made  payable  at  fixed  periods,  should  be  apportioned,  and  it 

1  Van  Rensselaer  v.  Bradly,  3  Denio,  4  Van  Rensselaer  v.  Bradly,  3  Denio, 

135.  14-1,  per  Jewett,  J. 

8  Van  Rensselaer  v.  Gallup,  5  Denio,  6  Jenner  v.  Morgan,  1  P.  Wms.  192. 

451.*  •  1  R.  S.  747,  §§  20,  21,  22. 

s  Van  Rensselaer  v.  Jones,  2  Barb.  S. 
C.  R.  643. 


Ch.  2..}  Appoprtionment.     Common.  131 

provided  for  the  recovery  of  the  apportioned  parts  from  the  last  period 
of  payment     This  latter  statute  has  not  been  adopted  in  this  state. 

Annuities  and  servants'  wages,  like  rents,  were  not  in  general  appor 
t  ion  able  at  common  law.  and  the  rule  seemed  to  be  applicable  to  all  peri- 
odical payments  becoming  due  at  fixed  intervals.  Thus,  when  the  plain 
tiff's  testator  was  appointed  bailiff  to  receive  rents,  under  a  promise  of 
£100  per  annum  for  his  services,  and  having  performed  the  service  for 
three  quarters  of  a  year,  he  died.  An  action  was  brought  by  his  execu- 
tors to  recover  £75  for  the  three  quarters  of  a  year.  But  the  court  held 
that  the  time  could  not  be  divided,  and  that  without  a  full  service  for  the 
year  there  could  be  no  recovery.1  The  case  was  decided  upon  the  anal- 
ogy to  the  law,  which  did  not  allow  an  apportionment  of  rent  as  to  time. 
But  this  rule  has  been  relaxed  in  modern  times,  and  wages,  it  is  under- 
stood, may  be  apportioned  upon  the  principle  that  such  is  the  reasonable 
construction  of  the  contract  of  hiring.2  But  this  is  only  when  there  is 
no  express  contract  for  a  particular  time  ;  for,  in  the  latter  case,  the  con- 
tract being  entire,  performance  is  a  condition  precedent  to  a  right  of 
recovery.3 

Although  annuities  are  not,  in  general,  apportionable,  yet  if  the  annui- 
tant dies  within  the  year  or  quarter,  as  the  case  may  be,  and  the  annuity 
was  given  for  maintenance,  in  infancy,  or  for  the  separate  maintenance  of 
a  feme  covert,  equity  will  apportion  the  annuity  up  to  the  day  of  the  aa- 
ir  litanfs  death,  on  the  principle  that  the  allowance  was  necessary,  and 
on  the  presumed  intention  of  the  parties.4 

The  right  of  common  sometimes  requires  the  application  of  the  doc- 
ti  ine  of  apportionment.  Common  is  a  right  or  privilege,  which  one  or  more 
persons  have,  to  take  or  use  some  part  or  portion  of  that  which  another  per- 
son's lands,  waters,  woods,  &c,  produce.  The  most  general  and  valuable 
kind  of  common  is  common  of  pasture,  which  is  a  right  of  feeding  one's 
beasts  on  another's  land.  This  kind  of  common  is  either  appendant,  ap- 
purtenant, because  of  vicinage,  or  in  gross.5  Common  appendant  is  a 
right  annexed  to  the  possession  of  land,  by  which  the  owner  thereof  is 
entitled  to  feed  his  beasts  on  the  wastes  of  the  manor,  and  can  only  be 
claimed  by  prescription.6     Conimoa  appurtenant  does  not  arise  from  any 

1  Countess  of  Plymouth  v.  Tbrogmor-        *  Hay  v.  Palmer,  2  P.  Wms.  501.    Shep- 

ton,  1  Salk.  65.  herd  v.  Wilson,  4  Hare's  R.  395. 

'  Per  Lawrence,  J.  in  Cutler  v.  Powell,        *  Cruise's  Dig.  tit.  23,  Com.  §§  1,  2,  3. 
6  D.  &  E.  326 ;  but  see  2  Leigh's  N.  P.        '  Id.  §§  3,  4.     Watts  v.  Coffin,  11J.  R. 

86,  87  and  88,  and  the  cases  cited.  498,  per  Van  Ness,  J. 

'  Pveab  v.  Moore,  19  J.  R.  337. 


132  Of  Account.  [Ch.  2 

connection  of  tenure,  but  must  be  claimed  by  grant  or  prescription,  and 
may  be  annexed  to  lands  lying  in  different  manors  from  those  in  which  it 
is  claimed.  This  species  of  common,  though  frequently  confounded  •with 
common  appendant,  differs  from  it  in  many  circumstances.  It  may  be 
created  by  grant,  whereas  common  appendant  can  only  arise  from  pre- 
scription. It  may  be  claimed  as  annexed  to  any  kind  of  land,  whereas 
common  appendant  can  only  be  claimed  on  account  of  ancient  arable  land. 
It  may  be  not  only  for  beasts  usually  commonable,  such  as  horses,  oxen 
and  sheep,  but  likewise  for  goats,  swine,  &c.  It  may  be  for  cattle  with- 
out number,  or  for  a  certain  number  only. 

Common  by  cause  of  vicinage  is  in  fact  only  a  permissive  right,  in- 
tended to  excuse  wThat  in  strictness  is  a  trespass.  It  can  only  exist  be- 
tween two  townships  or  manors  adjoining  one  another;  not  where  there 
is  intermediate  land. 

Common  in  gross  is  a  right  which  must  be  claimed  by  deed  or  prescrip- 
tion, and  has  no  relation  to  land,  but  is  annexed  to  a  man's  person.  This 
may  be  either  for  a  certain  or  an  indefinite  number  of  cattle.  The  full 
consideration  of  this  subject  belongs  to  a  treatise  on  real  property.  The 
above  is  enough  for  the  present  purpose.1 

Common  of  pasture  when  it  is  appendant,  may  be  apportioned ;  becauso 
it  is  of  common  right.  In  the  case  of  common  appurtenant,  if  the  per- 
son entitled  to  it  purchases  part  of  the  land,  wherein  the  common  is  to 
be  had,  there  shall  be  no  apportionment ;  because  common  appurtenant  ia 
against  common  right.  But  this  kind  of  common  shall  be  apportioned  by 
alienation  of  part  of  the  land  to  which  it  is  appurtenant.2  This  doctrine 
was  followed  in  New- York  in  an  early  case.3  The  principle  which  runs 
through  the  cases  is  this :  that  the  land  which  gives  a  right  of  common 
to  the  owner  shall  not  be  so  alienated  as  to  increase  the  charge  or  burden 
on  the  land  out  of  which  the  common  is  to  be  taken ;  and  that  when  the 
right  is  extinguished  or  gone,  as  to  a  portion  of  the  land  entitled  to  com- 
mon, it  is  extinct  as  to  the  whole  ;  for,  in  such  case,  common  appurtenant 
cannot  be  extinct  in  part,  and  be  in  esse  for  part,  by  the  act  of  the 
parties.  Hence,  where  the  owner  of  land,  out  of  which  the  common  is  ap- 
purtenant, purchases  part  of  the  land  out  of  which  the  common  is  to  bo 
taken,  or  the  owner  of  part  of  the  land  out  of  which  common  is  to  be 
taken  purchases  the  land,  or  part  of  the  land,  to  which  the  common  is  ap- 


1  The  above  is  abridged  from  Cruise's    1  Inst.  121,  a.     Tyrringbam's  case,  4  Rep. 
Digest,  title  Common.  87,  a. 

1  Cruise's  Dig.  tit.  23,  Com.  §§  36,  37.        8  Livingston  v.  Ten  Broek,  16  J.  R.  34 

"Wvat  "Wild's  case,  8  Co.  78.  b. 


Ch.  2.J  Rents  and  Profits.  133 

purtenant,  the  right  of  common  becomes  extinct,  not  only  as  to  the  part, 
but  as  to  the  whole. 

The  grantee  in  fee  of  a  right  of  common  in  gross,  and  without  number, 
may  alien  it,  and  it  descends  to  his  heirs  ;  but  it  cannot  be  aliened  in 
such  away  as  to  give  the  entire  right  to  several  persons,  to  be  enjoyed  by 
them  separately.  And  where  a  right  of  common  in  gross  descends  to 
several  persons  as  tenants  in  common,  or  parceners,  it  seems  it  cannot 
bo  divided  between  them,  but  there  must  be  a  joint  enjoyment  of  it.1 

Common  of  estovers  cannot  be  apportioned ;  and  if  the  person  enti- 
tled to  common,  convey  his  land  to  which  it  is  appurtenant,  part  to  one 
person,  and  part  to  another,  the  right  is  extinguished.2 

Common   of  pasture,  whether   appendant  or   appurtenant,  is  appor 
tionable.3 

Rents  and  profits,  not  only  when  arising  from  privity  of  contract,  but 
from  adverse  claims  and  titles  asserted  by  different  persons,  sometimes 
resolve  themselves  into  matters  of  account.  The  dealings  between  land- 
lord and  tenant  are  often  complicated,  arising  out  of  stipulations  for 
repairs  and  improvements,  for  which  compensation  is  to  be  made,  or 
from  the  mode  of  payment  of  the  rent  itself. 

Courts  of  equity,  when  resorted  to  for  the  purpose  of  an  account  of 
mesne  profits,  will,  in  many  cases,  consult  the  principle  of  convenience.4 
Lord  Hardwicke,  in  a  bill  brought  for  a  share  in  the  New  river  water, 
and  for  an  account  and  mesne  profits,  from  the  death  of  the  father 
of  the  defendant's  wife,  said,  that  though  the  plaintiffs  had  not  estab- 
lished their  title  at  law,  he  was  of  opinion  they  were  proper  in 
coming  into  equity  for  the  remedy,  in  order  to  have  a  discovery  of  the 
deed,  under  which  the  title  arises,  to  have  it  produced  at  all  trials  at  law, 
and  to  have  attested  copies.  A  bare  discovery  not  being  sufficient, 
some  relief  is  necessary ;  if  there  was  any  doubt  of  the  title,  I  would 
send  them  to  law.  But  the  bill  is  to  have  the  benefit  of  the  settle- 
ment, and  for  proper  directions  necessary  to  be  given  concerning  it; 
and  therefore,  though  it  is  matter  of  law,  yet  the  court  will  determine 
upon  it  notwithstanding,  for  it  is  not  necessary  for  every  legal  question 
to  be  sent  to  law.  There  is  likewise  another  relief  prayed,  an  account 
of  rents  and  profits. 


1  Lyman  v.  Abeel,  16  J.  R.  30.  ■  Van  Rensselaer  v.  Radcliff,  10  Wend. 

5  Van  Rensselaer  v.  Radcliff,  10  Wend-  639. 

639.     Livingston  v.  Ketchum,  1  Barlv  S.  4  Fonb.  Eq.  B.  1,  ch.  3,  §  3,  noto  k. 

C.  R.  6P2.  Townsend  v.  Ash,  3  Atk.  337. 


114  Of  Account.  [Cn.  2 

In  all  cases  where  questions  have  arisen  about  shares  in  v>  ater-works, 
the  parties  have  constantly  come  into  equity  for  mesne  profits  ;  for 
though  it  is  a  legal  estate  and  corporeal  inheritance,  yet  no  one  proprietor 
could  receive  the  profits  himself,  but  the  company  or  their  officeis  are 
the  common  hand  to  receive  profits,  and  there  is  no  other  way  to  come 
at  it. 

Where  an  estate  is  under  such  a  management,  though  the  legal  estate 
is  in  the  proprietors,  it  would  be  absurd  to  send  the  plaintiffs  to  law,  for 
it  would  be  difficult  to  bring  ejectments  for  a  thirty-sixth  part  and  bits  of 
land  in  several  counties,  and  to  bring  actions  of  trespass  against  the  terten- 
ants,  would  be  very  extraordinary,  as  the  management  is  in  the  company 
And  therefore,  in  point  of  remedy,  there  cannot  be  a  stronger  case  to 
come  here  for  an  account  of  profits.1 

The  cases  in  which  an  account  of  rents  and  profits  is  decreed,  where 
the  legal  estate  has  not  been  previously  established,  proceed  upon  that  re- 
spect which,  in  justice,  is  due  to  the  interest  of  persons,  who,  by  infancy, 
fraud,  &c,  have  been  prevented  from  pursuing  their  legal  rights.2  In 
general,  the  rule  in  equity  is  the  same  as  at  law ;  and  as  trespass  will 
Bot  lie  for  the  mesne  profits  till  possession  is  recovered,  so  neither  can  a  bill 
be  brought  for  an  account  thereof  till  then.3  A  court  of  equity  will  de- 
cree an  account  against  an  executor,  upon  the  special  ground  that  the 
plaintiff  was  prevented  from  recovering  in  ejectment  by  an  injunction  at 
the  instance  of  the  occupier,  who  ultimately  failed  both  at  law  and  in 
equity.4  If  the  court  did  not  decree  an  account  in  such  case,  its  inter- 
ference would  work  a  wrong,  because  the  plaintiff  might  have  recovered 
at  law,  in  the  lifetime  of  the  testator,  if  he  had  not  been  so  restrained. 

Courts  of  equity  do  not  suffer  a  right  to  be  without  a  remedy,  and 
therefore,  where  there  is  no  remedy  at  law,  equity  will  certainly  grant  one ; 
especially  where  the  right  is  clear,  but  from  the  want  of  particular  evidence, 
unavailable  at  law.5  Thus,  if  the  deed  by  which  rent  is  created  be  lost,  or 
the  premises  or  the  days  of  payment  are  stated  to  be  uncertain,  courts  of 
equity  will  interpose.6  So  where  a  distress  is  obstructed  by  fraud,  or  ther 
are  no  demesne  lands  on  which  to  distrain.7  Or  where  no  distress  can  be 
made,  the  subject  being  of  an  incorporeal  nature.8  The  remedy  to  collect 
rent  by  distress  having  been  abolished  in  this  state,9  it  would  seem  that 

!  Townsend  v.  Ash,  3  Atk.  337.  5  Fonbl.  Eq.  B.  1,  ch.  3,  §  3,  note  k. 

*  Fonbl.  Eq.  B.  1,  ch.  3,  §  3,  note  k.  *  Id.     Holder  v.  Chambry,   3  P.  Wms 
8  Norton  v.  Frecker,  1  Atk.  525.    Pult-    257,  per  Talbot,  Ch. 

ney  v.  Warren,  6  Ves.  91.  7  Davy  v.  Davy,  1  Ch.  Cas.  147. 

*  l'ultney  v.  Warren,  6  Ves.  73.  8  Thorndike  v.  Allington,  1  id.  79. 

9  Laws  of  1846,  p.  369. 


Ck  %]  Rents  and  Profits.  135 

equity  should  interpose  in  all  cases,  when  the  right  is  clear,  and  the  remedy 
at  law  doubtful,  or  inadequate.  In  an  early  case,  before  Chancellor  Kent, 
before  the  right  of  distress  was  abolished,  the  chancellor  said  :  "  Rent  is 
recoverable  in  equity,  where  the  remedy  has  become  difficult  or  doubtful 
at  law,  or  where  the  premises  are  uncertain."  He  approved  of  the  remark 
of  Lord  Thurlow,  that  where  the  remedy  at  law  was  lost,  or  deficient,  01 
the  premises  were  uncertain,  equity  would  interfere  ;  and  he  granted  relief 
in  the  case  before  him,  on  account  of  the  "  apparent  perplexity  and 
uncertainty  of  the  title,  and  of  the  extent  of  the  defendant's  responsi 
bility."1 

But  a  court  of  equity  will  not  aid  the  landlord  in  collecting  his  rent, 
while  he  is  proceeding  with  an  ejectment  suit  against  the  tenant  to  recover 
the  premises  for  a  condition  broken ;  the  remedy  in  equity  being  wholly 
inconsistent  with  the  other  proceeding.2  The  landlord,  after  he  has  re- 
entered for  a  forfeiture  of  the  lease,  may  recover  the  rent  which  accrued 
previous  to  such  forfeiture,  in  an  action  of  debt  or  upon  the  covenants  in 
the  lease.  But  for  rent  which  became  due  subsequently  to  that  time  he 
cannot  recover  as  landlord ;  and  his  only  remedy  is  to  proceed  for  the 
mesne  profits  against  the  lessee,  or  other  person,  who  has  held  the  posses- 
sion of  the  premises  adverse  to  his  claim.3 

At  law  the  assignee  of  the  lessee,  who  after  enjoying  the  premises, 
assigns  to  a  stranger,  is  not  liable  for  the  rent  which  accrued  during  his 
occupancy,  for  the  reason  that  there  is  no  privity  of  contract  to  charge 
him  as  assignee.  The  landlord  is  therefore  without  a  remedv  at  law. 
But  a  court  of  equity  will  require  the  assignee  to  account  for  the  rent 
which  accrued  during  the  time  he  enjoyed  the  land,  and  before  he  assigned.* 
But  equity  will  not  compel  the  assignee  to  perform  the  covenants  which 
run  with  the  land,  after  he  has  assigned,  any  more  than  a  court  of  law. 
By  the  assignment,  the  assignee  escapes  from  the  rent  which  accrue? 
subsequent  to  such  assignment.5 

Where  the  plaintiff  had  a  rent  charge  settled  upon  her  for  her  jointure, 
with  power  of  distress,  and  there  being  great  arrearages  of  rent  and  no 
sufficient  distress  on  the  premises  to  countervail  the  rent,  she  filed  a  bill 
against  the  devisee  of  the  inheritance,  that  a  sufficient  distress  might  be 
set  out,  or  that  she  might  be  permitted  to  hold  and  enjoy  the  land  until 


1  Livingston  v.  Livingston,  4  J.  Ch.  R.  iant  v.  Diomede,  2  Atk.  546,  548.     City 
287.  of  London  v.  Richmond,  2  Vern.  421. 

2  Stuyvesant  v.  Davis,  9  Paige,  428.  b  Same  cases.     Fonbl.  Eq.  B.  1,  ch.  5, 

*  M«  §  5,  and  note  y. 

*  Tieackle  v.  Cole,  1  Vern.  105.     Val- 


136  Of  Account.  fCh.  2 

satisfied  of  the  arrears  and  the  growing  payments.  But  the  lord  keepei 
denied  relief,  declaring  that  the  law  never  gives  any  other  remedy  thar 
that  which  the  party  has  provided  for  himself;  and  the  remedy  here  being 
only  by  distress,  and  not  to  enter  upon  and  hold  the  land,  declared  he 
would  not  relieve  the  plaintiff,  imless  some  particular  fraud  had  been 
proved  ;  as  letting  the  land  lie  fresh,  or  depasturing  it  in  the  night  time, 
on  purpose  to  prevent  a  distress  ;  and  if  that  were  the  case,  such  fraud 
by  tenant  for  life  ought  not  to  turn  to  the  prejudice  of  the  remainderman, 
J.o  charge  the  land  with  arrears,  which  incurred  in  the  time  of  the  tenant 
for  life.1  This  case  shows  that  the  fraudulent  deprivation  of  the  landlord 
by  the  tenant,  of  the  remedy  by  distress,  will  give  jurisdiction  to  a  court 
of  equity  to  afford  relief.  In  another  case,  the  master  of  the  rolls  afforded 
relief  to  the  devisee  of  a  rent  charge,  with  power  of  distress,  and  decreed 
satisfaction  of  the  rent,  and  that  the  plaintiff  enter  and  enjoy  the  prem- 
ises until  satisfied.2  The  case  is  too  loosely  reported,  to  determine  on  what 
principle  it  turned.  As  it  was  decided  only  a  month  after  the  preceding 
case,  it  is  probable  that  the  remedy  by  distress  had  been  fraudulently 
defeated,  or  that  the  demise  contained  a  clause  of  re-entry,  on  non-pay- 
ment of  the  rent. 

Where  a  lease  was  made  of  a  coal  mine  to  A.,  reserving  rent  in  trust 
for  five  others,  to  each  of  them  one-fifth.  The  five  partners  entered 
and  worked  the  mine,  and  took  the  benefit  of  it,  and  sometime  afterwards 
the  lessee  became  insolvent,  and  the  mine  unprofitable,  and  it  was  flung 
up  and  abandoned  by  the  partners.  It  was  decreed  that  the  lessee  should 
pay  to  the  plaintiff  the  contributive  moneys  he  had  received  from  each 
of  the  cestui  que  trusts  towards  working  and  carrying  on  the  coal  mine  ; 
and  if  that  should  not  prove  sufficient,  the  cestui  que  trusts  that  were 
living,  and  the  representatives  of  such  as  were  dead,  and  who  were  all 
before  the  court,  to  contribute  each  one-fifth  towards  satisfying  the 
plaintiff  the  arrears  of  rent  that  had  incurred  during  the  time  they  had 
concerned  themselves  in  taking  the  profits.3  In  this  case,  it  is  obvious 
that  there  was  no  remedy  at  law  against  the  jestui  que  trusts,  and  it  is 
perfectly  reasonable,  as  they  enjoyed  the  profits,  while  the  lease  was  a 
beneficial  one,  so  they  should  bear  the  loss.  Qui  sentit  commodum,  sen- 
tire  debt  et  onus. 

It  is  said  by  respectable  authority,  that  if  the  use  of  the  thing  be  en- 
tirely lost,  or  taken  away  from  the  tenant,  the  rent  ought  to  be  abated  or 

1  Chainpernon  v.  Gnbbs,  2  Vera.  383.        3  Clavering  v.  Westley,  3  P.  Wms.4Ga. 

■  Fester  v.  Foster,  2  id.  38Q. 


Ch.  '2.\  Apportionment,  by  act  of  God  137 

apportioned,  because  the  title  to  the  rent  is  founded  upon  this  presumption, 
that  the  tenant  enjoys  the  thing  during  the  contract ;  and  therefore,  if 
part  of  the  land  be  surrounded  or  covered  with  the  sea,  this  being  the 
act  of  God,  the  tenant  shall  not  suffer  by  it,  because  the  tenant,  without 
his  default,  wants  the  enjoyment  of  part  of  the  thing,  which  was  the  con- 
sideration of  his  paying  the  rent ;  nor  has  the  lessor  reason  to  complain, 
because,  if  the  land  had  been  in  his  own  hands,  he  must  have  lost  the  ben 
efit  of  so  much  as  the  sea  had  covered.1 

If,  however,  part  of  the  land  be  burnt  with  wild  five,  that  shall  make 
no  abatement  or  apportionment  of  the  rent,  because  the  use  of  the  land 
is  not  thereby  taken  away,  and  the  land  may  be  again  restored  to  its  form- 
er fertility  by  the  care  and  industry  of  the  tenant.2 

On  the  same  principle,  a  tenant  of  premises  demised  by  a  written 
agreement  is  liable  for  rent  accruing  due  after  the  premises  have  been 
burnt  down,  and  are  no  longer  habitable.3  And  there  is  no  equity  in  favor 
of  the  lessee  in  such  case,  though  not  liable  to  repair  in  case  of  fire,  for 
an  injunction,  against  an  action  under  the  contract  for  payment  of  rent, 
upon  the  destruction  of  the  house  by  fire.4 

It  is  well  settled,  as  has  been  stated  elsewhere,  that  the  tenant  is  liable 
on  his  covenant  to  pay  ren*  though  the  premises  be  destroyed  by  fire.5 
And  he  is  so  liable,  in  debt,  on  the  privity  of  estate,  there  being  a  cove- 
nant to  pay  rent  in  the  lease.6 

In  one  case  where  the  landlord,  after  the  burning  of  the  house,  received 
tie  insurance  money,  but  neglected  to  rebuild,  and  sued  the  tenant  for 
rent  accruing  subsequent  to  the  fire,  Lord  Northington  said,  the  justice 
of  the  case  was  so  clear,  that  a  man  should  not  pay  rent  for  what  he  cannot 
enjoy,  and  that  occasioned  by  an  accident  which  he  did  not  undertake  to 
stand  to,  that  he  was  surprized  it  should  be  looked  upon  as  so  clear  a  thing, 
that  there  should  be  no  defense  to  such  an  action  at  law  ;  and  that  such 
a  case  as  this  should  not  be  considered  as  much  an  eviction,  as  if  it  had 
been  an  eviction  of  the  title ;  for  the  destruction  of  the  house  is  the  de- 
struction of  the  thing.  Though  this  covenant  does  not  bind  the  defend- 
ant to  rebuild,  yet  when  an  action  is  brought  for  rent  after  the  house  is 
burnt  down,  there  is  a  ground  of  equity  for  an  injunction,  till  the 
house  is  rebuilt.7  The  action  was  compromised,  and  no  decree  was  pro- 
nounced. 

1  Bacon's  Abr.  tit.  Rent,  M.  p.  520.  6  Mark  v.  Cooper,  2  Ld.  Ray.  1477;  S. 

*  Id.  C.  2  Str.  763. 

*  Baker  v.  Ilaltzapffell,  4  Taunt.  45.  6  Ilallet  v.  Wylie,  3  J.  R.  44. 
Mlaitzapffel    v.  Baker,    18  Ves.    115.  7  Brown  v.  Quilter,  Ambl.  621. 

Belfour  v.  Weston,  1  I).  &  E.  311. 
Eq.  Jin.  18 


138  Of  Account.  [Ch.  is 

This  case  is  distinguishable  from  those  cited,  in  several  respects.  The 
landlord  having  received  the  insurance  money  for  the  house  which  was 
burnt,  the  plaintiff  insisted  that  the  landlord  should  either  rebuild  the 
premises,  or  let  him,  the  tenant,  have  the  insurance  money  toward  satis- 
faction of  his  loss.  The  landlord  in  his  answer  insisted  on  his  right  to 
the  insurance  money,  and  the  rent,  but  offered  to  discharge  the  plain- 
tiff from  the  lease.  This  the  chancellor  considered  raised  an  equity  in 
his  favor,  and  was  about  to  give  directions  accordingly,  when  the  matter 
was  compromised.  Yan  Ness,  J.,  in  Hallet  v.  Wylie,  speaks  of  this  case 
as  turning  on  its  special  circumstances,  as  does  Buller,  J.,  in  Doe  v 
Sandham.1 

The  cases  on  this  subject  might  be  greatly  multiplied,  but  enough  has 
been  said  to  show  the  nature  and  extent  of  equity  jurisdiction  in  matters 
of  rent,  and  the  principles  on  which  it  is  founded. 

Although  the  action  of  waste  is  a  common  law  action  and  the  proceed- 
ings thereon  are  regulated  by  the  statute,2  there  are  many  cases  in  which 
equity  interposes  its  remedial  powers,  and  in  which  the  action  terminates 
in  account.  In  an  early  case  the  supreme  court  of  New-York  held,  that 
where  wild  and  uncultivated  land,  wholly  covered  with  wood  and  timber,  is 
leased,  the  lessee  may  fell  part  of  the  wood  and  timber,  so  as  to  fit  the 
land  for  cultivation,  without  being  liable  for  waste ;  but  he  cannot  cut 
down  all  the  Avood  and  timber,  so  as  permanently  to  injure  the  inheritance. 
And  to  what  extent  the  wood  and  timber,  on  such  land,  may  be  cut  down, 
without  waste,  is  a  question  of  fact  for  the  jury,  under  the  direction  of 
the  court.3     That  action  was  at  law. 

Courts  of  equity  frequently  interfere  by  injunction  to  stay  waste  ;  and 
a  mere  threat  to  commit  waste  is  sufficient  to  grant  an  injunction  upon ; 
it  not  being  necessary  for  the  plaintiff  to  wait  till  the  waste  is  actually 
committed.4  This  subject  will  be  more  fully  treated  under  the  head  of 
Injunction. 

In  New- York,  it  was  held,  in  a  recent  case,  that  the  doctrine  of  waste, 
as  understood  in  England,  is  not  applicable  to  a  new  and  unsettled  country. 
It  was  said  that  where  the  whole  of  a  farm,  when  leased,  is  in  a  wild  and 
uncultivated  state,  with  the  exception  of  a  few  acres,  and  for  the  use  of  it 
the  lessee  agrees  to  pay  rent,  the  parties  will  be  held  to  have  intended 
that  the  lessee  should  be  at  liberty  to  fell  part  of  the  timber,  in  order  to  fit 
the  land  for  cultivation.     But  when  a  tenant  cuts  trees  upon  the  demised 

1  1  T.  R.  705,  709.  '  Jackson  v.  Brownson,  7  J.  R.  227. 

8  2  R.  S.  p.  S33,  4  Gibson  v.  Smith,  2  Atk,  182. 


CL   2.]  Charge  and  Discharge.  139 

premises,  not  for  the  purpose  of  preparing  the  land  for  cultivation,  but 
for  the  sake  of  the  profit  to  be  derived  from  the  sale  of  the  timber,  he  is 
guilty  of  waste.  The  right  to  account,  it  was  said  in  the  same  case,  for 
waste  already  committed,  is  incidental  only  to  the  right  to  file  a  bill  to  pre- 
vent future  waste.  A  bill  will  not  lie  merely  for  an  account  for  waste,  as 
the  plain  tiff  has  an  ample  remedy  at  law.  And  when  a  bill  is  filed  to 
prevent  future  waste,  and  also  to  prevent  the  removal  of  timber  already 
cut,  the  court  will  not,  unless  under  very  special  circumstances,  grant  an 
injunction  to  prevent  the  removal  of  timber  already  cut.1 

When  the  mischief  will  be  irreparable  and  the  defendant  is  insolvent, 
it  is  now  of  course  for  equity  to  afford  relief.2  The  jurisdiction  of  equity 
is  firmly  established.3  The  remedy  there  is  broader  than  at  law  ;  and 
equity  will  interpose  in  many  cases,  and  stay  waste,  when  there  is  no 
remedy  at  law.  If  there  was  an  intermediate  estate  for  life  between  the 
lessee  for  life  and  the  remainderman  or  reversioner  in  fee,  the  action  of 
waste  would  not  lie  at  law  ;  for  it  lay  on  behalf  of  him  who  had  the  next 
immediate  estate  of  inheritance.  Chancery  will  interpose  in  that  case  ; 
and  also  when  the  tenant  affects  the  inheritance  in  an  unreasonable  and 
unconscientious  manner,  even  though  the  lease  be  granted  without  im- 
peachment of  waste.4 


We  shall  now  bring  this  chapter  to  a  close,  with  a  few  remarks  on  tho 
general  subject  of  an  account. 

It  is  laid  down  in  the  treatises  on  equity  practice,  that  under  a  decree 
for  an  account,  both  parties  are  actors,  and  either  may  proceed  before  the 
master  in  taking  it.5 

The  mode  of  taking  an  account  before  the  master  was  settled  by  Chan- 
cellor Kent,  in  a  leading  case,6  at  an  early  day,  in  which  the  English  prac- 
tice, by  charge  and  discharge,  was  recognized.  The  practice  was  adopted 
of  requiring  the  parties  to  bring  in  their  respective  objections  to  the  re- 

1  Kidd  v.  Dennison,  6  Barb.  9.     Watson  3  Sarles  v.  Sarles,  3  Sand.  Ch.  R.  601. 

v.  Hunter,  5  J.  Ch.  R.  168.     Spear  v.  Cut-  4  Kent's  Coin.  76-78. 

ler,  4  How.  Pr.  R.  175.    Livingston  v.  4  Perrot  v.  Perrot,  3  Atk.  94.     Aston 

Livingston,  6  J.  Ch.  R.  497.  v.  Aston,  1  Ves.  264.     Vane  v.  Barnard, 

s  Spear  v.  Cutler,  4  How.  Pr.  R.  175.  2  Vern.  738. 

Winchip  v.  Pelts,  3  Paige,  259.    Hawley  6  Hoffman's  Master,  37.    Fowl.  Exch. 

v.  Clowes,  2  J.  Ch.  Cas.  122.    Hanson  v.  Pr.  2,  277. 

Gardiner,  7  Ves.  308.    Thomas  v.  Oakly,  e  Remsen  v.  Remsen,  2  J.  Ch.  R.  495. 
18  Ves.  184. 


140  Of  Account.  [Ch.  2. 

port,  on  being  furnished  with  a  draft  of  it,  and  confining  the  parties  in 
their  exceptions,  to  the  objections  thus  brought  before  the  master. 

A  charge  is  defined  to  be,  a  statement  in  -writing  of  the  items  'with 
which  the  opposite  party  should  be  debited,  or  should  account  for,  or  of 
the  claim  of  the  party  making  it.  It  is  more  comprehensive  than  a  claim, 
which  implies  only  the  amount  due  to  the  person  producing  it,  whUe  a 
charge  may  embrace  the  whole  liabilities  of  the  accounting  party.1 

Thus,  in  prosecuting  a  creditor's  bill,  the  charge  of  the  acting  plaintiff 
would  contain  all  the  receipts  of  the  executor  and  his  representatives, 
while  that  of  a  creditor  coming  in  under  the  decree,  would  include  only 
his  own  demand.  On  leaving  the  charge  with  the  master,  a  summons  was 
taken  out  for  the  opposite  party  to  proceed  upon  the  charge.  On  the  at- 
tendance before  the  master,  the  party  supports  his  charge,  item  by  item, 
either  by  the  pleadings,  the  examination  of  parties,  or  by  evidence.  If 
the  items,  or  any  of  them,  in  the  charge  are  improper,  the  objection  to 
them  is  considered,  in  disposing  of  the  charge  ;  and  when  the  charges  are 
all  allowed  or  disallowed,  then  the  opposite  party  exhibits  his  discharge, 
and  takes  out  a  summons  for  the  opposing  party  to  proceed  upon  it.  The 
discharge  is  not  merely  a  defense  to  the  charge  ;  it  is  only  a  statement  of 
disbursements,  and  an  offset  of  counter-claims.  In  case  of  delay  by  either 
party,  the  other  party  takes  out  a  warrant  to  proceed  before  the  master.2 

The  above,  which  was  essentially  copied  from  the  English  practice,  leads 
to  numerous  summonses  and  attendances  before  the  master,  and  perhaps 
warrants,  and  was  superseded  by  Chancellor  Walworth's  107th  rule.  By 
that  rule,  all  parties  accounting  before  the  master  were  required  to  bring 
in  their  accounts  in  the  form  of  debtor  and  creditor ;  and  any  of  the 
other  parties  who  should  not  be  satisfied  with  the  accounts  brought  in, 
were  at  liberty  to  examine  the  accounting  partj-,  upon  interrogatories,  as 
the  master  might  direct.  Every  charge,  discharge  or  state  of  facts 
brought  in  before  a  master,  was  required  to  be  verified  by  oath  as  true, 
either  positively,  or  upon  information  and  belief. 

The  chancellor  decided,  that  when  a  party  was  required  to  bring  in  his 
account  before  the  master,  in  the  form  of  debtor  and  creditor,  under  the 
107th  rule,  he  must  bring  in  his  whole  account,  and  for  the  whole  time 
for  which  he  was  accountable,  as  established  by  the  decretal  order  of  the 
court.  It  must  be  accompanied  by  the  usual  affidavit  of  the  party,  that 
the  account,  including  both  debits  and  credits,  is  correct,  and  that  he 
does  not  know  of  any  error  or  omission  in  the  account  to  the  prejudice 
of  any  of  the  other  parties.     In  the  same  case,  the  chancellor  6aid,  that 

J  Hoffman's  Master,  36.  3  Id.  38,  30. 


Ch.  2.]  Charge  and  Discharge.  141 

one  object  of  the  107th  rule  was  to  prevent  the  delay  and  expense  of  a  sep- 
arate summons  and  attendance  upon  every  proceeding  in  the  master's  office.1 

In  organizing  the  courts  under  the  constitution  of  1846,  after  the  abo- 
lition of  the  court  of  chancery,  and  the  transfer  of  equity  jurisdiction 
to  the  supreme  court,  the  107th  rule  of  Chancellor  Walworth  was  not 
retained.  But  it  was  provided  by  the  148th  rule;  adopted  in  August, 
1847,  that  in  cases  where  no  provision  was  made  by  statute,  or  by  the 
rules,  the  proceeding  in  the  court,  in  equity,  should  be  according  to  the 
customary  practice,  as  it  theretofore  existed  in  the  court  of  chancery,  in 
cases  not  provided  for  by  statute  or  the  written  rules  of  the  court.  After 
the  adoption  of  the  code  of  procedure,  and  the  consolidation  of  the  rules 
of  law  and  equity,  there  was  the  same  saving  of  the  customary  practice 
of  the  courts,  in  cases  not  provided  for  in  the  rules,  or  the  code. 

The  practice  in  New- York,  since  the  code,  seems  to  require  that  such 
matters  of  account,  as  cannot  be  conveniently  tried  by  a  jury,  should  be 
referred  to  one  or  more  referees,  except  when  the  trial  is  had  before  a 
single  judge.  The  trial  by  referees  is  conducted  in  the  same  manner,  and 
upon  a  similar  notice,  as  a  trial  by  the  court.  They  have  the  same  power 
to  grant  adjournments  as  the  court  upon  such  trial.2  They  must  state 
the  facts  found  and  the  conclusions  of  law  separately,  and  their  decision 
must  be  given,  and  may  be  excepted  to  and  reviewed  in  like  manner,  but 
not  otherwise,  and  they  may  in  like  manner  settle  a  case  or  exceptions. 
The  report  of  the  referees  upon  the  whole  issue  stands  as  the  decision  of 
the  court,  and  judgment  may  be  entered  thereon,  in  the  same  manner,  as 
if  the  action  had  been  tried  by  the  court.  When  the  reference  is  to 
report  the  facts,  the  report  has  the  effect  of  a  special  verdict. 

There  may  be  cases,  under  the  code,  where  the  whole  issues  are  not 
referred.  It  is  presumed  that  an  account  may  be  taken  before  a  referee, 
and  the  subsequent  proceedings  founded  on  his  report,  may  be  had  before 
the  court.  But  the  existing  rules  provide  for  no  such  case,  nor  do  they 
prescribe  the  manner  in  which  an  account  in  any  case  shall  be  taken. 
The  method  by  charge  and  discharge,  and  exceptions  to  the  decision 
of  the  referee,  as  in  the  former  practice  before  a  master,  has  become 
inapplicable  under  the  code.  No  doubt,  either  a  judge  or  referee  pos- 
sesses the  power  of  requiring  the  accounting  party  to  bring  in  his  account, 
in  the  form  of  debtor  and  creditor,  as  heretofore.  His  power  in  this 
respect  is  incident  to  his  power  over  the  subject. 

Under  the  former  chancery  practice  in  New- York,  upon  a  bill  to  open 
a  stated  account,  if  errors  or  mistakes  were  distinctly  charged,  leave 

1  Story  v.  Brown,  4  Paige,  114.  Code,  268  to  273. 


142  Of  Account.  [Ch.  2 

would  be  given  to  surcharge  and.  falsify.1     And  in  this  proceeding,  the 
party  might  take  advantage  of  error  in  law,  as  well  as  error  in  fact.2 

The  terms  surcharge  and  falsify,  have  a  technical  meaning.  A  sur- 
charge is  the  statement  of  items  omitted  on  the  debit  side  of  the  account 
of  the  accounting  party,  who  has  brought  in  his  accounts  in  the  mode 
prescribed  by  the  107th  rule  of  Chancellor  Walworth,  that  is,  by  debtor 
and  credit.  In  other  words,  a  surcharge  supposes  credits  to  have  been 
omit  toil  which  ought  to  be  allowed  to  the  other  party.3  A  falsification 
supposes  that  some  item  in  the  debits  is  entirely  false,  or  in  some 
respects  erroneous.  Both  terms  imply  that  the  balance  of  the  account 
is  wrong,  but  they  attribute  the  error  to  different  causes  ;  the  first  to 
the  o?nission  of  one  or  more  items,  with  which  the  accounting  party  should 
debit  himself,  or  in  other  words  credit  his  opponent  and  the  other  to  a 
falsification,  in  whole  or  in  part,  of  items  which  ought  not  to  be  charged.4 

An  account  made  up  and  subscribed  by  the  parties,  containing  the 
material  dealings  of  the  parties,  and  purporting  to  be  an  account  stated, 
will,  in  general,  be  so  treated  by  the  court,  and  it  will  lie  with  the  party 
who  impeaches  it  to  point  out  omissions  and  mistakes,  whether  fraudulent 
or  accidental.5  But  an  account  may  become  stated  by  lapse  of  time. 
It  has  been  often  held,  says  Chancellor  Kent,  that  if  a  party  receives  a 
stated  account  from  abroad,  and  keeps  it  by  him  for  any  length  of  time, 
(one  case  says  two  years,)  without  objection,  he  shall  be  bound  by  it.6 

In  a  case  in  the  supreme  court  of  the  United  States,  where  to  a  bill 
filed  to  set  aside  a  stated  account,  on  the  ground  of  fraud,  or  to  correct 
errors,  and  the  stated  account  was  pleaded  in  bar,  Ch.  J.  Marshall  said 
that  the  plea  must  be  sustained,  except  so  far  as  it  may  be  in  the  power 
of  the  other  party  to  show,  clearly,  that  errors  have  been  committed  in 
the  account.  No  practice,  he  observes,  could  be  more  dangerous  than 
that  of  opening  accounts  which  the  parties  themselves  have  adjusted,  on 
suggestion  supported  by  doubtful,  or  by  only  probable  testimony.    But,  if 


1  Stonghten  v.  Lynch,  2  J.  Ch.  E.  217.  *  Id.  and  Pitt  v.  Cholmondeley,  2  Yet 
Perkins  v.  Hart,  11  Wheat.  256.     Kins-  565,  566. 

man  v.  Parker,  14  Ves.  579.     Mad.  Ch.  B  Troop  v.  Haight,  1  Hopk.  239. 

Pr.  82,  83.  6  Murray  v.  Tolland,  3  J.  Ch.  E.  575. 

2  Eoberts  v.  Kuffin,  2  Atk.  112.  Con-  Willis  v.  Jernegan,  2  Atk.  251.  Tickell 
tsequa  v.  Fanning,  3  J.  Ch.  E.  587;  S.  C.  v.  Short,  2  Ves.  239.  Freeland  v.  Heron, 
on  appeal,  17  J.  E.  511.  7  Cranch,  147. 

3  Hoffman's  Ch.  Pr.537,  522.     1  Barb. 
Ch.  Pr.  507.     Story's  Eq.  §  525. 


Oh.  2.1  Stated  Amount.  145 

palpable  errors  be  shewn,  errors  which  cannot  be  misunderstood,  the  settle- 
ment must  be  so  far  considered  as  made  upon  absolute  mistake,  or  impo- 
sition, and  ought  not  to  be  obligatory  on  the  injured  party,  or  his  rep- 
resentatives, because  such  items  cannot  be  supposed  to  have  received  his 
assent.  The  whole  labor  of  proof  lies  upon  the  party  objecting  to  the 
account,  and  errors,  which  he  does  not  plainly  establish,  cannot  be  sup- 
posed to  exist.1 

The  prima  facie  presumption  is  in  favor  of  an  account  which  has  been 
stated  by  the  parties,  or  become  so  by  acquiescence.  And  the  general 
doctrine  is  well  settled  that  the  account  will  not  be  disturbed,  except 
there  be  fraud  or  mistake  in  the  settlement,  and  that  established  by 
clear  proof,2  or  there  be  errors  which  are  palpable,  or  clearly  proved.3 

A  party  seeking  to  open  a  settled  account,  in  a  proceeding  before  a 
surrogate  for  an  account,  should  be  able  to  show  such  a  case  as  would 
have  enabled  him  to  file  a  bill  in  equity  to  surcharge  and  falsify  such 
account.4 

The  court  is  not,  in  general,  inclined  to  open  accounts  of  long  standing. 
Stale  demands  are  never  favored  in  equity.5  In  a  case  before  Chancellor 
Kent,  where  a  merchant,  in  embarrassed  circumstances,  borrowed  money 
at  different  times  from  his  confidential  clerk,  who  took  various  bonds  and 
securities  for  such  loans,  and  for  which,  by  agreement,  he  was  to  allow 
usurious  interest,  and  during  the  period  of  ten  years  the  parties  from 
time  to  time  came  to  a  settlement  of  their  accounts,  and  the  merchant  gave 
lis  bonds  and  further  securities  for  the  balance  of  principal  and  interest, 
the  court  ordered  all  the  multiplied  obligations  and  settlements  to  be  set 
Alfide,  and  the  whole  accounts  at  large  to  be  opened  between  the  parties 
fi  /iii  the  commencement  of  their  dealings  ;  it  appearing  in  this  case  that 
there  was  proof  not  only  of  mistakes  and  differences  in  their  accounts, 
hut  there  were  many  suspicious  circumstances  leading  strongly  to  an  infer 
'■r  cc  of  usury,  oppression  and  fraud.6  It  was  also  a  case  where  undue 
ulvantage  was  taken  of  the  necessities  of  the  principal,  and  where  the 
•onndence,  which  the  latter  reposed  in  his  clerk,  was  abused. 

Before  the  statute  of  limitations  was  extended  to  demands  recoverable 
in   equity,  the  court  was  unwilling  to  decree  an  account,  where  the 


1  Chappedelaine  v.  Dechemaux,  4  Cran.        6  Tilghan  v.  Tilghan,  1  Bah-!.  0.  C.  R. 
30G.  495.    Bolifuer  v.  Weyman,  1  McCord's 

2  Lee's  Adm.  v.  Reed,  4  Dana,  112.  Ch.  R.  15G.     Gregory  v.  Forester,  id.  318, 
'  linker  v.  Riddle,  Baldw.  0.  C.  R.  418.  332.    Moers  v.  White,  6  J.  Ch.  R.  360. 

4  Valentine  v.  Valentine,  2  Barb.  Ch.        6  Barrow  v.  Rhinelander,  1  J.  Ch.  R 

R.  430,  43?..  550. 


144  0*  Account,  [Ch.  2. 

transactions  had  become  obscure  and  entangled  by  delay  and  time. 
There  was,  however,  no  precise  and  definite  rule  on  the  subject,  but 
each  case  was  left  to  depend  upon  the  exercise  of  a  sound  discretion  upon 
the  circumstances. i 

This  matter  is  now  regulated  by  the  code.  The  limitation  is  now 
six  years  ;  but  wher^  relief  is  sought  on  the  ground  of  fraud,  in  cases 
which  heretofore  weie  solely  cognizable  in  the  court  of  chancery,  the 
cause  of  action  is  not  to  be  deemed  to  have  accrued,  until  the  discovery 
by  the  aggrieved  party  of  the  facts  constituting  the  fraud,2 

1  R*ynar  v.  Pearsall,  3  J.  Ch.  E.  578.        a  Code,  §  91. 
Ray  v.  Bogert,  2  J.  Cas.  432.    EJison  v. 
Moffat,  1  J.  Ch.  46.  » 


CHAPTER  III. 


OF    FRAUD. 


SECTION  I. 


OF    ACTUAL    FRAUD. 


WE  now  pass  to  the  head  of  Fraud,  another  branch  of  jurisdiction 
which  courts  of  equity  exercise  concurrently  with  courts  of  law. 
This  jurisdiction  is  probably  coeval  with  the  establishment  of  the  court  of 
■chancery,  and  was  originally  exercised  only  in  cases  where  there  was  no 
remedy  by  the  ordinary  course  of  law.1  While  the  court  of  star  cham- 
ber was  in  being,  there  was  little  occasion  for  the  exercise  of  this  juris- 
diction, as  that  court  possessed  an  extensive  jurisdiction  in  cases  of  fraud, 
by  not  only  relieving  the  plaintiff,  but  by  punishing  the  defendant  for 
his  fraudulent  conduct.  Upon  the  abolition  of  that  court,  in  the  reign  of 
Charles  the  first,  the  jurisdiction  of  equity,  in  matters  of  fraud,  was  more 
actively  exerted,  sometimes  concurrently  with  courts  of  law,  and  some- 
times in  cases  where  those  courts  could  not  afford  relief.2 

In  a  great  variety  of  cases,  fraud  is  as  effectually  remediable  in  a  court 
of  law  as  in  courts  of  equity.  Whenever  the  state  of  the  pleadings  and 
evidence  properly  present  the  case  to  the  consideration  of  a  court  of  law, 
the  redress  is  generally  as  complete  in  the  latter  court  as  when  it  is  ad- 
ministered by  a  court  of  equity.  In  cases  where  fraud  is  not  penal,  equity 
has  concurrent  jurisdiction  with  courts  of  law,  except  in  fraud  in  obtain- 
ing a  will.  In  such  case,  if  the  will  be  of  real  estate,  the  question  as  to  its 
valid  execution  belongs  primarily  to  the  surrogate's  courts,  but  ultimately 
to  the  consideration  of  a  court  of  law,  upon  an  issue  devisavit  vel 
non  ;  or,  which  presents  the  same  question,  in  an  action  at  law  between 
the  heir  and  devisee.3     The  question  whether  such  will  was  obtained  1  y 

1  4  Inst.  84.  ■  Laws  of  1837,  p.  524.     3  Bl.  Com. 

*  1  Mad.  Ch.  Pr.  89.  1  Fonbl.  Eq.  B.    431.     Pemberton  v.  Petr.lortnn,  lti  Ye*. 

1,  cb.  2,  §  12.  297. 

Eq.   Ji;r.  19 


146  Of  Fraud.  [Ch.  S, 

fraud  or  undue  means,  is  involved  in  the  same  inquiry.  The  course  upon 
a  bill  by  an  heir  impeaching  a  will,  is  to  direct  nim  to  bring  an  ejectment, 
equity  removing  obstacles  -which  will  prevent  a  trial  upon  the  merits,  if 
any  such  are  interposed.1 

If  the  will  relates  only  to  personal  estate,  the  surrogate  of  the  proper 
coanty  has  exclusive  jurisdiction,  and  the  probate  of  the  will  is  conclusive. 
And  the  surrogate  must  determine  all  questions  of  fraud,  imposition,  and 
undue  influence  in  procuring  such  will,  as  well  as  the  general  question  of 
capacity,  subject  to  appeal,  and  subject  to  its  being  revoked,  or  declared 
void  by  a  competent  tribunal,  as  declared  by  Taw,2  The  court  of  chan- 
cery in  this  state  possessed  no  original  jurisdiction  to  try  the  validity  of 
wills  of  personal  estate.  It  had  only  an  appellate  jurisdiction  from  the 
decision  of  the  surrogate.3  In  England,  too,  it  is  well  settled  that  the 
probate,  unrevoked,  is  conclusive  both  in  courts  of  law  and  of  equity,  as 
to  the  appointment  of  executors,  and  the  validity  and  contents  of  the  will 
ao  far  as  it  extends  to  personal  property  ;  and  it  cannot  be  impeached  by 
evidence,  even  of  fraud.4 

The  question  has  often  been  discussed  in  the  English  courts,  whether 
a  court  of  equity  will  grant  relief  in  cases  of  wills  obtained  or  suppressed 
by  fraud,  and  it  is  now  well  settled  in  the  negative.  The  cases  are  elab- 
orately reviewed  by  Lord  Cottenham  in  a  recent  case.5 

But  though  a  court  of  equity  will  not  set  aside  a  will,  as  obtained  by 
fraud,  after  it  has  been  admitted  to  probate,  it  has  been  held  that  equity 
will  declare  a  trust  upon  a  will,  in  the  case  of  a  notorious  fraud  upon  a 
legatee  ;  as  if  the  drawer  of  a  will  should  insert  his  own  name  instead  of 
the  name  of  the  legatee ;  in  such  case,  it  is  said,  that  the  person  whose 
name  is  so  inserted  by  fraud  would  be  a  trustee  for  the  real  legatee.6 
This  has  never  been  supposed  as  infringing  upon  the  jurisdiction  of  the 
ecclesiastical  courts.7 


1  Laws  of  1837,  p.  524.    3  Bl.  Com.  3  Colton  v.  Ross,  2  Paige,  396. 

431.     Pemberton  v.  Pemberton,  13  \Tes.  4  1  Will.  Ex.  339.     Arcber  v.  Mosse,  2 

297.     Smith  v.  Carl),  5  J.  Cb.  R.  118.  Yern.  8.     Plume  v.  Beale,  1  P.  Wms.  388. 

Clarke  v.  Sawyer,  2  Barb.  Cb.  R.  411.  Griffiths  v.  Hamilton,  12  Ves.  298. 

,J  Mi      v.  Leake's  Trustees,  8  Barh.Ch.  5  Allen  v.  MacPherson,  1  Phil.  R.  133. 

It.  477.     Clark  v.  Fisher,  1  Paige,  171.  6  Marriot  v.  Mariiot,    1    Str.  6(57,  ap- 

2  R.  S.   61,   §  29.     Yanderpoel  v.  Van  proved  by  Lord  Cottenham,  in  Allen  t. 

Valken burgh,  2  Seld.  190.     Bogardus  v.  MacPherson,  1  Phil.  R.  144.     Gaines  and 

Clark,  1  Edw.  266;  8.  C.  4  Paige,  623.  wife  v.  Chew,  2  How.  S.  C.  R.  619,  645, 

Hornsby's  will,  2  Paige  431.     Van  Reus-  646.     Traver  v.  Traver,  9  Pet.  180. 

feebler  v.  Morris,  1  id.  13.  7  Fonbl.  Eq.  B.  4,  part  2,  ch.  1,  §  2,  n.  a 


Ch.  3.]  Definition  of  Praud.  147 

With  regard  to  the  definition  of  the  term  fraud,  it  was  well  remarked 
by  Lord  Eldon,  in  one  case,  that  the  court  has  never  ventured  to  lay 
down,  as  a  general  proposition,  what  shall  constitute  fraud.1  Should  a 
fixed  and  invariable  rule  be  devised,  other  means  of  avoiding  the  equity 
of  the  court  would  soon  be  found  out  Hence,  in  cases  of  oppressive 
bargains,  if  the  least  tincture  of  fraud  is  found,  relief  has  always  been 
given.2  And  when  it  is  considered  how  various  and  complicated  are  the 
transactions  of  human  affairs,  how  greedy  and  insatiable  is  the  appetite 
for  gain,  and  how  resistless  the  temptations  of  avarice,  we  can  readily 
acquiesce  in  the  remark,  that  fraud  is  infinite,  and  that  any  attempt  to 
limit  the  jurisdiction  of  relief,  would  be  followed  by  new  schemes,  which 
the  fertility  of  man's  invention  would  contrive.3 

Fraud  has  been  defined  to  be,  any  kind  of  artifice  by  which  another 
is  deceived.  Hence,  all  surprise,  trick,  cunning,  dissembling,  and  other 
unfair  way  that  is  used  to  cheat  any  one,  is  to  be  considered  as  fraud.4 

Although  some  exception  has  been  taken -to  this  definition,  yet  it  is 
esteemed  by  writers  of  high  authority  as  sufficiently  descriptive  of 
actual,  moral  fraud.5  Collusion,  is  considered  in  a  court  of  equity  as 
fraud. b  But  this  definition  does  not  embrace  a  large  number  of  acts  of 
•constructive  or  implied  fraud,  which  in  their  effects  are  equally  preju- 
dicial to  the  rights  of  others  as  actual,  moral  fraud,  and  which  are  alike 
n  '  /able  by  courts  of  equity.  Any  act  of  omission  or  commission,  con- 
ti  ary  to  legal  or  equitable  duty,  trust  or  confidence,  justly  reposed, 
a  id  which  is  injurious  to  another,  though  it  fulls  short  of  moral  fraud,  is, 
ii  the  sense  of  a  court  of  equity,  within  its  remedial  jurisdiction.7  Such 
a  :ts  or  omi.-.sions  are  usually  denominated  frauds,  though  they  be  so 
■oily  constructively.  Thus,  an  indulgent  parent,  who,  unconscious  of  his 
ii  solvency,  and  out  of  love  and  affection  to  his  son,  gives  him  an  estate, 
c.mnot  thus  defeat  the  claims  of  his  creditors  ;  nor  can  he,  in  the  eye 
of  a  court  of  equity,  escape  the  imputation  of  fraud,  by  evidence  that  he 
was  ignorant  of  his  insolvency,  and  governed  rather  by  motives  of  love 
towards  his  son,  than  by  a  design  to  cheat  his  creditors.  Equity  accepts 
no  such  apology  for  acts,  or  omissions,  which  tend  directly  to  defraud. 
And  even  the  innocence  of  a  party  who  has  profited  by  the  fraud, 
will  not  entitle  him  to  retain  the  fruit  of  another  man's  misconduct,  or 
exempt  him  from  the  duty  of  restitution.8 

1  Mortlock  v.  Buller,  10  Ves.  306.  B  Story's  Eq.  Jur.  §  187.   Jeremy  on  Eq. 

■  Per  Lord  Ilardwicke,  in  Lawley  v.  Jur.  B.  3,  pt.  2,  p.  358.     Adams'  Eq.  170 

Hooper,  0  Atk.  278.  e  Garth  v.  Cotton,  3  Atk.  757. 

1  Mad.  Ch.  Pi-.  204.  7  Belcher  v.  Belcher,  10  Yerg.  121. 

'  Id.  205.  »  Huffuenin  v.  Baseley,  14  Ves.  273,  281. 


148  Of  Fraud.  [Ch.  3. 

Before  entering  upon  the  subject,  it  may  be  well  t<  considei  what  is 
meant  by  the  common  maxim,  that  fraud  is  odious  and  never  to  be  pre- 
sumed.1 This  maxim,  when  correctly  understood,  is  true  as  well  ir 
equity  as  in  law.  The  maxim  is  predicable  only  of  those  acts  which 
stand  alone.  It  rests  upon  the  same  footing  as  the  presumption  of  inno- 
cence. It  means  merely  that  the  onus  probandi  is  cast  upon  him  who 
asserts  fraud.2  It  does  not  mean  that  guilt  or  fraud  may  not  be  estab- 
lished by  presumptive  evidence.  In  truth,  they  are  established  by  that 
species  of  evidence,  in  most  instances.3 

Lord  Hardwicke,  in  one  case,4  enumerates  four  species  of  fraud,  all  of 
which  rest  upon  presumptive,  or  circumstantial  evidence.  First,  fraud 
arising  from  facts  and  circumstances  of  imposition,  which  is  the  plainest 
case  :  secondly,  fraud  may  be  apparent  from  the  intrinsic  value  and  sub- 
ject of  the  bargain  itself,  such  as  no  man  in  his  senses,  and  not  under 
delusion,  would  make  on  the  one  hand,  and  as  no  honest  or  fair  man 
would  accept,  on  the  other  ;■  which  are  inequitable  and  unconscionable  bar- 
gains, and  of  such  even  the  common  law  has  taken  notice  ;  a  third  is 
that  which  may  be  presumed,  from  the  circumstances  and  condition  of 
the  parties  contracting;  and  this  goes  further  than  the  rule  of  law, 
which  is,  that  fraud  must  be  proved,  not  presumed.  But  it  is  wisely 
established  in  equity,  to  prevent  taking  surreptitious  advantage  of  tho 
weakness  or  necessity  of  another,  which,  knowingly  to  do,  is  equally 
against  conscience,  as  to  take  advantage  of  his  ignorance.  A  fourth 
kind  of  fraud  may  be  collected  or  inferred,  in  the  consideration  of  a 
court  of  equity,  from  the  nature  and  circumstances  of  the  transaction, 
as  being  an  imposition,  and  deceit  on  the  other  persons,  not  parties  to 
the  agreement. 

The  most  obvious  cases  of  actual  fraud  are  such  as  arise  from  the  sug- 
gest™ falsi,  or  the  suppressio  veri.5  In  order  to  constitute  a  fraud  of 
the  first  class,  it  is  said  there  must  be  a  representation,  express  or  implied, 
false  within  the  knowledge  of  the  party  making  it,  reasonably  relied  on 
by  the  other  party,  and  constituting  a  material  inducement  to  his  con- 

1  Bath  and  ^Montague's  case,  3  Ch.  Cas.  *  Chesterfield  v.  Jansen,   2  Yes.  155; 

85.     Fonbl.  Eq.  B.  1,  ch.  2,  §  8.     Cowen  S.  C.  1  Atk.  351,  2. 

&  Hill's  Notes,  298.    Cro.  Car.  550.  6  Fonbl.  Eq.  B.  1,  ch.  2,  §  8.    Jarvis  v, 

=  Fleming  v.  Slocum,  18  J.  E.  403.     C.  Dale,  1  Vern.  20.     Broderic  v.  BroderiC; 

&  H.  Notes,  301,  484.  1  P.  Wms.  240. 

s  Waterbery  v.  Sturtevant,  18  Wend. 
853-362,  per  Cowen,  J. 


Ch.  3. |  Suguestio  Falsi.  149 

tract,  or  act.1  If  the  fact,  concerning  which  the  misstatement  is  made, 
is  not  a  material  inducement  to  the  contract,  or,  if  it  was  not  relied  on 
by  the  complaining  party,  there  is  no  reason  why  a  court  of  equity 
should  interpose. 

The  requirement  that  the  representation  shall  be  not  onty  false,  but 
false  within  the  knowledge  of  the  party  making  it,  distinguishes  a  fraudu- 
lent representation,  from  an  erroneous  affirmation,  by  way  of  covenant 
or  warranty.  Affirmations  of  the  latter  kind  bind  the  party  making  them, 
although  he  were  himself  honestly  mistaken,  because  he  has  explicitly 
agreed  that  they  shall  do  so  ;  but  if  a  warranty  or  covenant  is  not  given, 
a  mere  representation,  honestly  made,  and  believed  at  the  time  to  be 
true  by  the  party  making  it,  though  not  true  in  fact,  does  not  amount 
to  fraud.2 

It  is  a  very  old  head  of  equity,  says  Chancellor  Kent,3  adopting  the 
language  of  Lord  Eldon,4  that  if  a  representation  be  made  to  another  per- 
son, going  to  deal  in  a  matter  of  interest,  upon  the  faith  of  that  repre- 
sentation, the  former  shall  make  that  representation  good,  if  he  knew 
that  representation  to  be  false.  He  held  that  if  there  was  a  jurisdiction 
at  law  upon  the  doctrine,  as  was  held  by  the  king's  bench  in  Pasley  v. 
Freeman,5  there  was  a  concurrent  jurisdiction  in  equity. 

At  law,  the  plaintiff  must  allege  and  prove,  if  his  action  be  founded 
on  the  fraud,  that  the  representation  was  made  with  intent  to  cheat  and  < 
defraud  the  plaintiff,  and  was  made  by  the  plaafciff- knowing  it  to  be  false. 
This  falsity  may  consist  in  the  assertion  of  an  untruth,  as  well  as  the 
suppression  of  the  truth."  If  the  action  be  founded  on  the  warranty,  and 
the  representation  be  proved,  in  connection  with  other  facts,  to  establish 
such  warranty,  the  scienter  need  not  be  alleged  or  proved.7  No  particu- 
lar form  of  words  is  necessary  to  constitute  a  representation,  a  warranty. 
There  must  be  a  direct  and  express  affirmation  in  contradistinction  from 
opinion ;  and  it  must  be  shown  that  it  was  intended  as  a  warranty,  and 
not  merely  the  expression  of  the  judgment  of  the  vendor.8 


1  Adams'  Eq.  177,  351.     Ball  v.  Lively,  4  Evans  v.  Bicknell,  G  Yes.  182. 

4  Dana,  370.     Clarke  v.  White,  12  Pet.  6  Pasley  v.  Freeman,  3  T.  R.  51. 

178.     Evans  v.  Bicknell,  0  Yes.  173,  182.  c  Id.     Allen  v.  Arlington,  7  Wend.  9; 

Attwood  v.  Small,  0  CI.  &  Fin.  444,  445,  S.  C.  11  Wend.  .".74.     Williams  v.  Wood, 

per  Lord  Brougham.  14  Wend.  126.     2  Chitty's  PI.  278,  notes. 

1  Adams'  Eq.  178.     Young  v.  Covill,  '  1  Chitty's  PL  139.    Williamson  v.  Al- 

8  J.  R.  23.   Allen  v.  Addington,  11  Wend,  lison,  2  East,  446.     Attwood  v.  Small,  6 

374.     Freeman  v.  Baker,  5  Barn.  &  Ad.  CI.  &  Fin.  444,  445. 

W.  •Chapman  v.  March,  i:>   J.  R.  230. 

*  Bacon  v.  Bronsou,  7  J.  Ch.  R.  201.  Swett  v.  Colgate.  20  J.  R.  196. 


I 
150  Of  Fraud.  [Ch.  8 

In  equity,  relief  will  be  granted,  in  some  cases,  (^  the  ground  of  fraud 
although  the  party  thus  misrepresenting  a  material  fact,  made  the  asser- 
tion, without  knowiiig  whether  it  was  true  or  not.1  The  consequences 
to  the  party  who  acted  upon  the  faith  of  the  representation  are  the  same, 
whether  he  who  made  it  knew  it  to  be  false,  or  was  ignorant  whether  it 
was  true  or  false.  In  a  moral  as  well  as  legal  point  of  view,  it  is  as 
unjustifiable  to  affirm  as  true,  a  fact  which  the  part}'  making  the  affirma- 
tion, does  not  know  or  believe  to  be  true,  as  to  assert  for  truth  what  he 
knows  to  be  false.  And  if  the  assertion  was  made  to  influence  the  con- 
duct of  the  other  party  in  a  matter  of  business,  and  it  did  influence  him 
to  his  prejudice,  equity  will  interpose  and  grant  relief.2 

And  even  if  by  mistake,  and  innocently,  a  party  misrepresents  a 
material  fact,  upon  which  another  party  is  induced  to  act,  it  is  as  conclu- 
sive a  ground  for  relief  in  equity,  as  a  willful  and  false  assertion.3 

The  cases  place  a  representation,  known  by  the  party  making  it  to  be 
false,  in  the  same  category  with  a  representation  made  with  intent  to 
deceive,  whether  the  party  making  it  knew  it  to  be  false  or  not.4 

A  fraud  arising  from  the  suppression  of  the  truth,  is  as  prejudicial  to 
the  party  deceived,  as  that  which  springs  from  the  assertion  of  a  false- 
hood.    And  the  courts  have  not  hesitated  to  sustain  recoveries,  when  the 
truth  has  been  suppressed,  with  intent  to  defraud,  as  well  as  when  a  false 
hood  has  been  asserted,  with  the  like  intent.5 

If  an  owner  stands  by,  and  knowingly  suffers  an  innocent  person  to  be 
misled  by  his  silence,  and  to  purchase  his  property  without  giving  him 
notice  of  his  title,  a  court  of  equity  will  treat  it  as  a  fraud  upon  tho 
purchaser,  and  grant  an  injunction  against  the  future  assertion  of  that 
title  by  the  owner.6 

In  the  contracts  of  insurance  and  of  suretiship,  we  find  frequent  appli- 
cations of  the  principle  which  treats  non-disclosure  as  equivalent  to  fraud, 
when  circumstances  impose  a  duty  that  the  disclosure  should  be  made. 
In  the  first  case,  the  concealment  of  a  material  fact,  which  the  insurer 
has  a  right  to  know,  and  which  the  other  party  is  bound  to  communicate, 
is  fatal  to  the  policy,  whether  it  occur  through  fraud,  accident,  or  honest 

1  Ainslie  v.  Medlycott,  9  Yes.  21.  "  Taylor  v.  Ashton,  11  Mees.  &  Wels. 

2  Harding  v.  Randall,  3  Maine  R.  332.  400.  Foster  v.  Charles,  6  Bing.  390;  S. 
Smith  v.  Richards,  13  Pet.  38.     Trnnbull    C.  7  id.  65. 

v.  Gadsden,  2  Strobhart's  Eq.  South  Car.  5  Allen  v.  Addington,  7  Wend.  9  ;  S.  C. 

R.  14.     McFerran  v.  Taylor,  3  Craneh,  in  error,  11  Wend.  374.     Fleming  v.  Slo- 

281.  cum,  18  J.  R.  403. 

*  Lewis  v.  McLemore,  10  Yerg.  206.  6  The  Brig  Sarah  Ann,  2  Sumner,  206 


Cli.  3.J  Caveat  Emptor.  151 

mistake.1  In  the  case  of  a  surety  guarantying  a  contract,  if  there  be  a 
fact  materially  affecting  the  contract,  misrepresented  to  him,  or  concealed 
from  him,  with  the  knowledge  or  consent  of  the  party  accepting  the 
guaranty,  the  surety  ceases  to  be  liable.2 

Fraudulent  concealment,  therefore,  is  only  predicable  of  facts  materia' 
to  be  known,  and  which  the  vendor  is  under  an  obligation  to  communi- 
cate, and  the  vendee  is  entitled  to  know.  Mere  non-disclosure  is  generally 
not  equivalent  to  fraud.  The  maxim,  caveat  emptor,  authorizes  the  con- 
tracting party  to  remain  silent,  and  to  avail  himself  of  his  superior 
knowledge. 

The  principles  of  natural  justice  and  sound  morals  require  more  scru- 
pulous good  faith,  candor  and  truth,  in  dealings  with  one  another,  than  is 
exacted  either  by  law  or  equity.  As  a  matter  of  conscience,  says  Po~ 
thier,  any  deviation  from  the  most  exact  and  scrupulous  sincerity  is  repug- 
nant to  the  good  faith  that  ought  to  prevail  in  contracts.  The  golden 
rule,  which  commands  us  to  love  our  neighbor  as  ourselves,  will  not  per- 
mit us  to  conceal  from  him  any  thing  which  we  should  be  unwilling  to 
have  had  concealed  from  ourselves,  under  similar  circumstances.  But  the 
common  law  does  not  go  to  this  length.  Human  tribunals  have  not  the 
means  of  administering  justice  by  such  a  scale.  To  do  it  effectually,  re- 
quires the  attributes  of  divine  intelligence.  Courts  of  justice  aim  at 
practical  good  and  general  convenience,  rather  than  at  theoretical  perfec- 
tion. They  require  the  exercise  of  vigilance  on  the  part  of  the  buyer,  to 
such  defects  in  the  article  as  are  open  to  observation,  and  an  entire  free- 
dom on  the  part  of  the  seller,  from  any  false  representation,  deception,  or 
concealment,  whether  by  words,  actions,  or  signs.  When  the  means  of 
information  are  equally  accessible  to  both  parties,  and  neither  does  or 
says  any  thing  tending  to  impose  upon  the  other,  the  disclosure  of  facts. 
within  the  knowledge  of  one  of  the  parties  alone,  tending  to  affect  the 
value  of  the  article,  is  not  essential  to  the  validity  of  the  contract.3 

The  maxim,  caveat  emptor,  applies  both  to  the  purchaser  of  real  and 
personal  property,  and  it  is  applicable  to  the  quality  of  the  article,  and 
the  title  of  the  vendor  in  both  cases.  By  the  civil  law,  as  observed  by 
Lord  Coke,  every  man  is  bound  to  warrant  the  thing  that  he  sells,  or  con- 


1  Wilson  v.  The  Herkimer  Co.  Mu.  Ins.  Duchaire,  3  T.  R.  552.  Steinmar  v.  M~ag 
Co.  2  Seld.  53,  59.  De  Costa  v.  Scan-  nus,  11  East,  390.  Leeds  v.  Dunn,  NT.  V 
claret,  2  P.  Wins.  170.  Carter  v.  Boebm,  court  of  appeals,  Dec.  T.  1853,  notes  of 
3  Burr.  1905.  decision,  p.  38. 

2  Pidcock  v.  Bishop,  8  Barn.  &  Cr.  G05.  3  Laidlow  v.  Organ,  2  Wheat.  178. 
Weed  v.  Bentley,  0  Hill,  50.    Jackson  v. 


152  Of  Fraud.  [Ch.  a 

veys,  albeit  there  be  no  express  warranty,  but  the  common  law  binds  him 
not,  unless  there  be  a  warranty,  either  in  deed  or  in  law.1  The  rule  of 
caveat  emptor  has  no  application,  where  the  defect  is  a  latent  one,  and  of 
such  a  nature  as  the  purchaser  cannot  by  the  greatest  attention  discover 
it,  and  if,  moreover,  the  vendor  be  cognizant  of  it,  and  do  not  acquaint  the 
purchaser  with  the  fact  of  its  existence  ;  for  in  this  case  the  contract 
would  not  be  considered  binding  at  law,  and  equity  would  not  enforce  a 
specific  performance.2 

When  the  defects  are  patent,  and  such  as  might  have  been  discovered 
by  a  vigilant  man,  or  when  the  contract  was  entered  into  with  full 
knowledge  of  them,  equity  will  not  afford  relief.  In  the  former  case  the 
rule  is  vigilantibus  non  dor mientibus  jura  subveniunt,  and  in  the  latter, 
scientia  utrinque  par  pares  contrahentes  facit. 

With  respect  to  real  property,  the  rule  applies  as  to  the  title,  equally, 
whether  the  vendor  is  in  or  out  of  possession,  for  he  cannot  hold  the  lands 
without  some  title ;  and  the  buyer  is  bound  to  see  it,  and  to  inspect  the 
title  deeds  at  his  peril.  He  does  not  use  common  prudence,  as  was  well 
said  by  Lord  Kenyon,  in  Pasley  v.  Freeman,3  if  he  relies  on  any  other 
security.  The  ordinary  course  on  the  sale  of  real  estates  is  this  :  the  sell- 
er submits  his  title  to  the  inspection  of  the  purchaser,  who  exercises  his 
own,  or  such  other  judgment  as  he  confides  in,  on  the  goodness  of  the 
title ,  but  though  it  should  turn  out  to  be  defective,  the  purchaser  has 
no  remedy,  unless  he  takes  a  special  covenant  or  warranty  ;  provided 
there  be  no  fraud  practiced  on  him  to  induce  him  to  purchase.4  The  ven- 
dor, says  Chancellor  Kent,  in  one  case,5  selling  in  good  faith,  is  not  re- 
sponsible for  the  goodness  of  his  title  beyond  the  extent  of  his  covenants. 
If  a  regular  conveyance  is  made,  containing  the  usual  covenants  for  se- 
curing the  buyer  against  the  acts  of  the  seller,  and  his  ancestors  only, 
and  his  title  is  actually  conveyed  to  the  buyer,  the  rule  of  caveat  emptor 
applies  against  the  latter,  so  that  he  must,  at  his  peril,  perfect  all  that  is  re- 
quisite to  his  assurance  ;  and  as  he  might  protect  his  purchase  by  proper 
covenants,  none  can  be  implied.  Thus,  an  administrator  found,  among 
the  papers  of  his  intestate,  a  mortgage  deed,  purporting  to  convey  prem- 
ises to  him,  and  without  arrears  of  interest.  Not  knowing  it  to  be  a  forgery, 
ne  assigned  it,  covenanting  not  for  good  title  in  the  mortgagor,  but  only 
that  nothing  had  been  done  by  himself,  or  the  deceased  mortgagee,  to  in- 


1  Co.  Litt.  202,  a.  *  Per  Lawrence,  J.,  in  Parkinson  \„ 

2  Seymour  v.  De  Lancey,  3  Cowen,  445.  Lee,  2  East,  323. 

Br.  Legal  Maxims,  008.  6  Gouveneur  v.  Elmendorffj  5  J.  Cb. 

«  3  T.  K  65.  R  84. 


Ch.  8..J  Caveat  Emptor.  153 

cumber  the  property :  and  as  this  precluded  all  presumption  of  any  fur- 
ther security,  the  assignee  was  held  bound  to  look  to  the  goodness  of  the 
title,  and  failed  to  recover  the  purchase  money.1  If  he  had,  as  Lord 
Mai-sfield  said,  in  the  same  case,  discovered  the  forgery,  and  had  then 
got  rid  of  the  deed  as  a  true  security,  the  case  would  have  been  very  dif- 
ferent. But  he  did  not  covenant  for  the  goodness  of  the  title,  but  only, 
that  neither  he  nor  the  testator  had  incumbered  the  estate.  This  case  is 
quoted  with  approbation  by  Chancellor  Kent,  in  Gouveneur  v.  Elmendorff. 
already  cited,  and  was  sanctioned  by  Lord  Kenyon  in  Cripps  v.  Read,2 
and  Iry  the  English  common  pleas  in  Johnson  v.  Johnson,3  by  the  su- 
preme court  of  New-York  in  Frost  v.  Raymond,4  and  by  the  court  of 
chancery  of  the  same  state  in  Abbott  v.  Allen.5  The  same  doctrine  was 
in  effect  held  by  the  present  supreme  court  in  a  recent  case.6  In  that 
case  it  was  held,  that  the  mere  omission,  in  a  contract  for  a  quitclaim 
deed  of  premises,  held  by  lease  in  fee,  to  state  that  they  were  subject  to 
quarter  sales,  was  no  evidence  of  a  fraudulent  concealment.  To  sustain 
an  action  to  recover  back  the  consideration  money,  it  must  be  shown,  said 
the  learned  judge,  that  the  defendant,  in  making  the  contract  fur  the  sale 
of  the  farm,  misrepresented  some  material  fact  affecting  his  title,  or  that 
he  intentionally  concealed  from  the  knowledge  of  the  plaintiff  some  such 
fact. 

This  doctrine  of  caveat  emptor  has  been  applied  to  the  demise  of  land 
for  agricultural  purposes,  and  of  houses  for  occupation.  Although  there 
ia  some  conflict  in  the  cases,  it  seems  now  to  be  settled,  that  there  is  no 
contract,  still  less  a  condition,  implied  by  law,  on  the  demise  of  real  prop- 
erty only,  that  it  is  fit  for  the  purpose  for  which  it  is  let.  Hence,  on  the 
demise  of  land,  or  the  vesture  of  land  for  a  specific  term,  at  a  certain 
rent,  there  is  no  implied  obligation  on  the  part  of  the  lessor,  that  it  shall 
be  fit  for  the  purpose  for  which  it  is  taken.7  This  principle  has  also  been 
extended  to  the  lease  of  a  house  and  garden  to  be  taken  for  actual  occu- 
pation.8 In  the  last  mentioned  case,  the  declaration  stated  that  the  plain- 
tiff agreed  to  let  to  the  defendant  a  house  and  garden  ground,  with  the 
use  of  the  fixtures  therein,  for  the  term  of  three  years,  at  a  rent  payable 
quarterly,  the  tenant  to  preserve  the  messuage  and  premises  in  good  and 
tenantable  repair,  by  virtue  of  which  the  tenant  entered  and  continued 

Bree  r.  Holbeck,  Doug.  055.  s  2  J.  Ch.  R.  523. 

3  6  T.  R.  606.  6  Camp  v.  Pulver,  5  Barb.  91. 

3  3  B.  &  P.  102,  170.  •  Sutton  v.  Temple,  11  M.  &  "W.  52. 

■  2  Caines,  188.  ■  Hart  v.  Windsor,  12  id.  68. 

Ey.  Jen.  20 


154  Of  Fraud  [Ch.  3 

in  possession  until  a  quarter's  rent  accrued  under  and  by  virtue  of  the 
agreement.  To  this  the  defendant  plead  that  the  house  "was  demised  to 
the  defendant  for  the  purpose  of  his  inhabiting  the  same,  but  that  before, 
and  at  the  time  of  the  agreement,  and  also  when  the  defendant  entered; 
and  from  thence  until  and  at  the  time  of  his  quitting  and  abandoning  the 
possession  of  the  same,  it  was  not  in  a  fit  state  or  condition  for  habitation, 
but  in  that  state  that  the  defendant  could  not  reasonably  inhabit,  or  dwell 
therein,  or  have  any  beneficial  occupation  of  the  same,  by  reason  of  the 
same  being  greatly  infected  with  bugs,  and  not  by  reason  of  any  act  or 
default  of  the  defendant ;  and  that  before  the  rent  or  any  part  thereof 
became  due,  he  quitted  the  possession  and  gave  notice  thereof  to  the 
plaintiff,  and  ceased  all  further  occupation  of  the  same,  and  derived  no  ben- 
efit therefrom  ;  and  that  from  the  commencement  of  the  term  until  his  so 
quitting,  he  had  no  beneficial  use  or  occupation  of  the  same.  The  jury 
having  found  for  the  defendant  on  the  issues  raised  by  the  pleas,  it  was 
held,  on  motion  for  judgment  non  obstante  veredicto,  that  the  plea  was 
no  answer  to  the  action,  inasmuch  as  the  law  implied  no  contract  on  the 
part  of  the  lessor,  that  the  house  was,  at  the  time  of  the  demise,  or  should 
be,  at  the  commencement  of  the  term,  in  a  reasonably  fit  state  and  condi- 
tion for  habitation.  Secondly,  that  the  demise  being  of  a  house  and  gar- 
den ground,  in  order  to  make  the  plea  good,  it  must  be  held  that  if  a 
house  be  taken  for  habitation,  and  land  for  occupation,  by  the  same  lease, 
there  is  such  an  implied  contract  for  the  fitness  of  the  house  fur  habita- 
tion as  that  its  breach  would  authorize  the  tenant  to  give  up  both ;  but 
it  was  held,  thirdly,  that  there  is  no  implied  warranty  on  a  lease  of  a 
house,  or  of  land,  that  it  is  or  shall  be  reasonably  fit  for  habitation,  occu- 
pation or  cultivation. 

So  far  as  the  foregoing  case  is  in  conflict  with  the  earlier  case  of  Smith 
v.  Marrable,1  the  latter  must  be  treated  as  overruled.  There  is,  however, 
a  slight  distinction  between  the  two  cases.  In  Smith  v.  Marrable  it  was 
held,  that  there  is  an  implied  condition  in  the  letting  of  a  furnished  house 
that  it  shall  be  reasonably  fit  for  habitation ;  if  it  be  not,  as  for  example, 
where  it  is  greatly  infected  with  bed  bugs,  the  tenant  may  quit  it  with 
out  notice. 

The  learned  judge,  in  delivering  his  opinion  in  Hart  v.  "Windsor,  said . 
"  The  principles  of  the  common  law  do  not  warrant  the  position  that  there 
is  an  implied  warranty,  on  a  demise  of  real  property,  that  it  is  fit  for  the 
purposes  for  which  it  was  let ;  and  though  in  the  case  of  a  dAvelling  house 
taken  for  habitation,  there  is  no  apparent  injustice  vi  enforcing  a  contract 

1  11  M.  &  W.  5      ' 


Ch.  3.]  Caveat  Emptor.  15' 

of  this  nature,  the  same  rule  must  apply  to  land  taken  for  other  purposes 
— for  building  upon  or  for  cultivation  ;  and  there  would  be  no  limit  to  the 
inconvenience  •which  would  ensue.  It  is  much  better  to  leave  the  parties 
in  every  case  to  protect  their  interests  themselves  by  proper  stipulations  ; 
and  if  they  really  mean  a  lease  to  be  void  by  reason  of  any  unfitness  in 
the  subject  for  the  purpose  intended,  they  should  express  that  meaning." 

The  subject,  in  its  more  general  bearing,  belongs  to  the  doctrine  of 
landlord  and  tenant.  But  it  may  be  added  here,  that  the  doctrine  in 
Hart  v.  "Windsor,  was  fully  confirmed  in  the  subsequent  case  of  Surplice 
v.  Farnsworth.1 

In  New- York,  before  the  revision  of  1830,  it  was  held,  in  conformity  to 
the  common  law,  that  a  conveyance  in  fee  did  not,  in  itself,  imply  a  cove- 
nant of  title,  but  the  word  "give,"  in  such  a  conveyance,  implied  a  war- 
ranty, for  the  life  of  the  grantor;2  that  the  words  "grant"  and  "infeoff" 
imported  a  warranty,  in  an  estate  for  years,  but  not  in  an  estate  in  fee  ;3 
and  that  an  express  covenant  in  a  deed  took  away  all  implied  covenants.4 
For  some  of  these  distinctions,  it  was  said,  no  very  solid  reasons  could  be 
given.  They  probably  arose  from  artificial  reasons,  derived  from  the 
feudal  law.5  The  civil  law  implies  a  covenant  as  to  title  with  respect  to 
the  sale  of  both  real  and  personal  property.  By  the  revised  statutes  of 
New-York,  it  is  enacted  that  no  covenant  shall  be  implied  in  any  convey- 
ance of  real  estate,  whether  such  conveyance  contain  special  covenants 
or  not.6 

The  question,  whether  there  is  an  implied  covenant  on  the  part  of  the 
lessor  of  a  dwelling  house,  that  the  premises  are  tenantable,  was  fully 
considered  by  the  supreme  court,  in  a  recent  case.7  It  was  there  held, 
that  there  is  no  implied  warranty  on  the  part  of  a  lessor  of  a  dwelling 
house  that  it  is  fit  for  occupation  and  tenantable.  And  the  learned  judge, 
in  delivering  the  opinion  of  the  court,  said,  that  the  doctrine  of  implied 
covenants,  or  warranty,  had  a  very  limited  application  for  any  purpose, 
to  a  lease  for  years,  and  in  every  case  has  reference  to  the  title,  and  not 
to  the  quality,  or  condition  of  the  property.  The  maxim,  caveat  emptor, 
applies  to  the  transfer  of  all  property,  real,  personal  and  mixed ;  and  the 
purchaser  generally  takes  the  risk  of  its  quality  and  condition,  unless 
he  protects  himself  by  an  express  agreement  on  the  subject.     A  sale  of 

1  8  Scott,  1ST.  S.  307.  13  Law  Jour.  N.  4  Vanderkar  v.  Vanderkar,  11  J.  R. 
B.,  0.  P.  215.     8Jur.  760.  122. 

"Frost  v.  Raymond,  2  Cai.  188,  195.  s  Per  Kent,  Ch.  J.  in  Frost  v.  R/iyinond, 
Kent  v.  Welch,  7  J.  R.  258.  2  Cai.  195. 

*  2  Cai.  supra.  a  1  R.  S.  738,  §  140. 

7  Clevos  v.  AYilloughby,  7  IIill,  83. 


156  Of  Fraud.  [Ch.  3 

provisions  for  domestic  use,  (Van  Bracklin  \.  Fonda,  12  J^/in.  R.  468,) 
and  a  demise  of  ready  furnished  lodgings,  (Smith  v.  Marable,  1  Can*.  & 
Mar.  479,)  may  be  mentioned  as  exceptions;  for  as  to  these  the  law 
implies  a  warranty,  that  the  former  are  wholesome,  and  the  latter  free 
from  nuisance.  (See  Chitty  on  Contracts,  449  to  452,  5th  Am.  ed.)  The 
learned  judge  then  reviewed  the  cases  on  this  subject,  and  which  are 
referred  to  below,1  and  observed  that  they  hardly  admitted  of  classifica- 
tion, and  that  it  would  be  difficult  to  deduce  from  them  any  clear  and 
satisfactory  general  principle.  And  he  adopted  the  remark  of  Ch.  J. 
Tindal,  in  Izorn  v.  Gorton,  (5  Bing.  N.  C.  501,)  that  the  cases  in  which 
the  tenant  has  been  allowed  to  withdraw  himself  from  the  tenancy,  and 
to  refuse  payment  of  rent,  will  be  found  to  be  cases  where  there  has  been 
either  error  or  fraudulent  misdescription  of  the  premises  which  were 
the  subject  of  the  letting,  or  where  the  premises  have  been  found  to  be 
uninhabitable  by  the  wrongful  act  or  default  of  the  landlord  himself. 
And  he  concludes  that,  when  there  has  been  no  misdescription  of  the 
premises,  either  by  mistake  or  fraud,  and  no  particular  agreement  to  put 
them  in  repair,  the  tenant  takes  them  for  better  or  for  worse,  and  the 
landlord  is  under  no  obligation  to  repair. 

> 

We  shall  in  the  next  place  consider  how  far  the  maxim,  caveat  emptor, 
applies  in  the  case  of  the  sale  of  goods  and  chattels,  first,  in  regard  to 
the  quality  of  the  goods,  and  secondly,  in  regard  to  the  title  to  them. 

With  regard  to  the  quality  of  the  article  sold,  the  seller  is  not  bound 
to  answer,  unless  there  be  a  fraudulent  representation,  or  a  fraudulent 
concealment,  or  a  warranty.  On  this  subject,  the  rule  laid  down  by 
Ch.  J.  Tindal,  in  a  recent  case,2  may  be  taken  as  a  guide :  "If"  said  the 
learned  judge,  "  a  man  purchase  goods  of  a  tradesman,  without,  in  any 
way,  relying  upon  the  skill  and  judgment  of  the  vendor,  the  latter  is 
not  responsible  for  their  turning  out  contrary  to  his  expectation  ;  but  if 
the  tradesman  be  informed,  at  the  time  the  order  is  given,  of  the  pur- 
pose for  which  the  article  is  wanted,  the  buyer,  relying  upon  the  seller's 
judgment,  the  latter  impliedly  warrants  that  the  thing  furnished  shall 
be   reasonably    fit    and    proper   for    the    purpose   for   which    it   is   re- 

'  Smith  v.  Marable,  1  C.  &  M.  479  ;  S.  Nation  v.  Tozer,  1  Cr.  Mees.  &  Rose,  172 

C.  11  M.  &  W.  5.    Salisbury  v.  Marshall,  4  Tyr.  5G1,  S.  C. 

4  C.  &  P.  65.     Collins  v.  Barrow,  1  Mood.  2  Brown  v.  Edgington,  2  Scott's  N.  P 

<i  Rob.  112.     Shepherd  v.  Pybus,  3  Man.  504;  S.  C.  2  Man.  &  Gr.  279,  recognize* 

&  Gr.  607.     Edwards  v.  Hetherington,  7  by  Parke,  B.  in  Sutton  v.  Temple,  12  M 

Dowl.  &  Ryl.  117;  S.  0.,  R.  &  M.  268.  &  W.  64.     Junes  v.  Bright,  5  Bing.  533 

recognize,!,  4  M.  &.  W.  4U6,  per  Parke.  J 


Oh.  3.J  Caveat  Emptor.  157 

quired."  This  is  quite  reasonable,  for  if  the  articles  furnished  are  not 
those  which  the  vendee  agreed  to  purchase,  he  ought  not  to  be  obliged  to 
pay  for  them.  In  a  case  of  this  kind,  the  purchaser  ought  to  return  the 
goods  to  the  vendor,  or  give  him  notice  to  take  them  back,  and  thereby 
rescind  the  contract ;  or  he  will  be  presumed  to  acquiesce  in  the  quality 
of  the  goods.' 

In  the  leading  case  in  New- York,  it  was  held,  contrary  to  the  rules  of 
the  civil  law,  that  a  sound  price  does  not  imply  a  warranty  of  soundness, 
and.  that  if  there  be  neither  warranty  nor  fraud,  the  buyer  cannot  re- 
cover, though  the  article  turns  out  to  be  defective,  or  different  from 
what  it  was  sold  for.2  The  court  distinctly  adopted  the  reasoning  of 
Fonblanque  on  this  subject.3  That  writer  says:  "  The  principles  upon 
which  courts  of  law  proceed  upon  the  subject  of  warranty  so  strongly 
tend  to  reconcile  the  claims  of  convenience  with  the  duties  of  good  faith, 
that  I  cannot  conceive  the  means  by  which  they  can  receive  an  addition- 
al extent,  or  be  in  any  degree  circumscribed,  without  endangering  the 
interests  which  they  are  now  so  well  calculated  to  preserve.  To  excite 
that  diligence  which  is  necessary  to  guard  against  imposition,  and  to 
secure  that  good  faith  which  is  necessary  to  justify  a  certain  degree  of 
confidence,  is  necessary  to  the  intercourse  of  society.  These  objects  are 
attained  by  those  rules  of  law,  which  require  the  purchaser  to  apply  his 
attention  to  those  particulars  which  may  be  supposed  within  the  reach 
of  his  observation  and  judgment ;  and  the  vendor  to  communicate  those 
particulars  and  defects  which  cannot  be  supposed  to  be  immediately 
within  the  reach  of  such  attention.  If  the  purchaser  be  wanting  of  at- 
tention to  those  points,  where  attention  would  have  been  sufficient  to 
protect  him  from  surprise,  or  imposition,  the  maxim,  caveat  emptor. 
ought  to  apply  ;  but  even  against  this  maxim  he  may  provide,  by  requir- 
ing the  vendor  expressly  to  warrant  that  which  the  law  would  not  imply 
to  be  warranted.  If  the  vendor  be  wanting  in  good  faith,  fides  servan- 
da is  the  rule  of  law,  and  can  scarcely  be  more  effectually  enforced  in 
equity  than  it  is  at  law." 

The  doctrine  of  Seixas  v.  Woods  has  been  repeatedly  recognized  and 
reaffirmed  in  the  New- York  courts.4 

Nor  does  the  circumstance  that  the  article  sold  is  an  entirely  spurious 
and  worthless  one,  fraudulently  made  for  the  purpose  of  being  sold  for  a 

1  Fisher  v.  Samuda,  1  Camp.  N.  P.  E.        3  1  Fonbl.  B.  1,  ch.  5,  §  8,  p.  380. 
190.     Milner   v.  Tucker,  1  C.  &  P.  15.        4  Swett  v.  Colgate,  20  J.R.  1<J5.    bnell 

Cash   v.    Giles,    3  id.   407.     Percival  v.  v.  Moses,  1  id.  96.     Perry  v.  Aaron,  id. 

B. ake,  2  id.  514.  129.  Defreeze  v.  Trumper,  id.  274.    Hold. 

'  BeWas  v.  Woods,  2  Cai.  48.  en  v.  Dakin,  4  id.  421. 


158  Op  Fraud.  [Ch.  3 

raluable  commodity,  which,  it  is  made  to  resemble,  vary  the  ial&  as  be- 
tween an  innocent  vendor  and  vendee.1 

The  sale  of  provisions  for  domestic  use  has  already  been  stated  to 
form  an  exception  to  the  general  rule.  With  respect  to  these,  the  ven- 
dor is  bound,  at  his  peril,  to  know  whether  they  are  sound  and  whole- 
some ;  and  if  they  are  not  so.  an  action  on  the  case  will  lie  against  him 
at  the  suit  of  the  vendee.2  But  this  exception  does  not  embrace  provis- 
ions sold  as  merchandise,  and  not  for  immediate  consumption.3  The 
articles  are,  usually,  in  the  former  case,  sold  in  large  quantities,  and 
neither  party  is  presumed  to  have  an  actual  knowledge  of  their  condi- 
tion. Hence,  on  the  sale  of  a  manufactured  article,  as  flour,  for  a  sound 
price,  there  is  no  implied  warranty  that  the  article  is  merchantable.4 
The  common  law  rule  prevails  in  such  cases. 

The  foregoing  observations  are  sufficient  to  illustrate,  in  a  general  way, 
the  maxim  of  caveat  emptor,  in  regard  to  the  quality  of  the  goods  sold. 
It  remains  to  consider  the  same  question  in  regard  to  the  title  to  them. 

The  general  principle  has  long  been  established  in  New- York,  that,  on 
the  sale  of  a  chattel,  there  is  an  implied  warranty  of  title  in  the  vendor.3 
Whether  a  warranty  shall  be  implied,  when  the  vendor,  at  the  time  of  the 
sale,  is  not  in  the  actual  possession  of  the  thing'  sold,  has  been  decided 
in  the  negative  by  the  supreme  court  of  this  state,  in  a  recent,  well  con- 
sidered case.6  A  warranty,  say  the  court,  should  only  be  implied  when 
good  faith  requires  it.  The  possession  of  the  vendor,  at  the  time  of  the 
sale,  is  equiTalent  to  an  affirmation  of  title,  and  there  is  no  hardship  in 
implying  a  warranty  in  such  a  case.  And  the  court  accordingly  held, 
that  an  implied  warranty  of  title  was  only  raised  when  the  vendor  was 
in  possession  of  the  articles  sold,  at  the  time  of  the  sale. 

If  the  property  sold  be,  at  the  time,  in  the  possession  of  another  per- 
son, and  there  be  no  affirmation  of  ownership,  no  warranty  will  be 
implied.  Possession  out  of  the  vendor  is  enough  to  put  the  purchaser 
on  inquiry,  and  to  call  for  an  express  warranty,  if  he  chooses  not  to  take 
the  property  upon  his  own  risk.  It  is  believed  that,  in  such  a  case,  the 
maxim,  caveat  emptor,  applies. 

There  is  some  conflict  in  the  authorities,  as  to  whether  a  warranty 

1  Welch  v.  Carter,  1  Wend.  185.  Lam-  6  Defreeze  v.  Trimmer,  1  J.  R.  274. 
oert  v.  Heath,  15  M.  &  W.  485.  Heermance  v.  Vernoy,  6  J.  R.  5.     Swett 

2  Van  Bracklin  v.  Fonda,  12  J.  R.  468.  v.  Colgate,  20  id.  196.     Rew  v.  Barber,  3 

3  Moses  v.  Mead,  5  Denio,  617;  S.  C.  1  Cowen,  272. 

id.  378.  6  McCoy  v.  Artcher,  3  Barb.  S.  C.  R. 

4  Hart  v.  Wright,  17  Wend.  267,  affirm-    323. 
•d.  18  id.  449. 


Ch.  3.]  Caveat  Emptor.  159 

will  be  implied  in  the  vendor,  who  is  not  in  possession  at  the  time  of  the 
sale.  It  is  laid  down  by  a  writer  of  high  authority,  that  a  warranty  will 
be  presumed,  whether  the  goods  sold  be,  at  the  time  of  the  sale,  in  the 
possession  of  the  vendor,  or  of  a  third  person,  unless  the  contrary  be 
then  expressed.1  Chancellor  Kent,  in  his  commentaries,2  asserts,  that 
the  rule  caveat  emptor  applies,  if  the  possession  be  in  another  at  the 
time  of  the  sale,  and  there  be  no  covenant,  or  warranty.  He  assumes, 
that  the  law  implies  a  warranty  only  in  cases  when  the  seller  has  pos- 
session of  the  article,  and  sells  it  as  his  own,  and  not  as  agent  for  another, 
and  for  a  fair  price.3  To  this  extent  we  have  adopted  the  civil  law, 
which  in  all  cases,  on  a  sale  for  a  round  price,  implied  a  warranty  of 
title,  and  allowed  the  article,  if  unfit  for  the  purpose  intended,  to  be 
returned,  and  the  bargain  to  be  rescinded.4  In  the  early  New- York 
cases,  the  attention  of  the  court  was  not  drawn  to  the  distinction  between 
the  sale  by  a  party  out  of  possession,  and  by  a  party  in  possession.  This 
distinction  is  properly  taken  in  McCoy  v.  Artcher,  (supra,)  and  is  sup- 
ported by  principle  and  authority.  In  England,  an  implied  warranty  of 
title  is  never  raised  except  on  a  sale  by  a  person  in  possession.5  And 
even,  on  such  sale,  it  has  been  denied  that  the  purchaser  has  any  remedy 
against  the  vendor,  unless  there  be  fraud  on  the  part  of  the  latter,  or  an 
assertion  of  title,  or  representation  amounting  to  a  warranty.6  But  it  is 
admitted  that  the  doctrine  has  been  much  restricted  in  its  practical 
operation,  by  holding  that  a  simple  assertion  of  title  is  equivalent  to  a 
warranty,  and  that,  generally,  any  representation  may  be  tantamount 
thereto,  if  the  party  making  it  appear,  from  the  circumstances  under 
which  it  was  made,  to  have  had  an  intention  to  warrant,  or  to  have  meant 
that  the  representation  should  be  understood  as  a  warranty.7 

Having  thus  briefly  shown  the  definition  of  fraud  as  it  is  considered  in 
ibe  eye  of  a  court  of  ecpuity,  whether  arising  from  the  assertion  of  a 
hood,  or  the  suppression  of  the  truth;  whether  it  be  actual  moral 
fraud  or  constructive  fraud ;  and  having  adverted,  briefly,  to  the  doctrine 
of  caveat  emptor,  it  may  now  be  convenient  to  illustrate  the  subject  by 
a  few  examples,  which  have  been  sustained  by  authority.     In  doing  this5 

1  W.  W.  Story  on  Con.  §  505.     Id.  on  S.  C.  1  Ld.  Eayra.  323.     Grosse  v.  Gard- 

Sales,  §  367  ner,  Carth.  90.     1  Shower,  68. 

a  2  Kent's  Com.  478.  ■  Broom's  Legal  Maxims,  628. 

8  Id.  '  Id.  684.     Peto  v.  Blades,  5  Taunt.  657. 

*  Domat,  Cushing's  ed.  vol.  1.  part  1,  Jones  v.  Bowden,  4  id.  847.     Sprigwell  v. 
tit.  2.  §  2,  arts.  3  and  4.  Allen,  Aleyn's  R.  91,  and  Paget  v.  "Wilk 

*  Medina  v.  Stoughton,  1  Salk.  R.  210;  inson,  cited  2  East.  448,  n.  a. 


160  OV  Fraud.  [CL.  3 

it  will  not  be  necessary  to  separate  the  cases  of  fraud  arising  from  mis- 
representation, from  those  which  arise  from  fraudulent  concealment. 
Both  stand  upon  the  same  footing,  and  are  followed  by  the  same  conse- 
quences ;  and  it  will  tend  to  avoid  repetition,  if  they  are  treated  under 
the  same  head.  Cases  of  fraud  between  parties  standing  to  each 
other  in  confidential  relations,  and  of  constructive  fraud,  will  then  be 
noticed,  and  some  of  the  modes  of  preventing  fraud,  and  of  relieving 
against  it,  will  then  be  brought  under  review. 

It  is  a  well  established  principle,  that  equity  will  relieve,  not  only 
against  deeds,  writings,  and  solemn  assurances,  but  also  against  judg- 
ments and  decrees,  obtained  by  fraud  and  imposition.1  Thus,  in  a  case 
before  Chancellor  Kent,  where  an  attorney  revived,  by  scire  facias.  ?.n 
old  outstanding  judgment,  on  which  but  a  very  small  sura,  if  any  thing, 
was  due,  knowing  that  the  land  on  which  the  judgment  was  a  lien,  was 
in  the  possession  of  innocent  and  bona  fide  purchasers  ;  and  afterwards 
made  use  of  the  judgment  to  compel  the  purchasers,  who  were  ignorant 
of  the  proceedings  under  the  scire  facias,  to  pay  and  secure  to  him  a  debt 
against  the  person  under  whom  they  had  purchased ;  the  court,  on  the 
ground  of  imposition  and  undue  advantage  taken  by  the  attorney,  ordered 
him  to  refund  the  money  he  had  so  obtained,  and  set  aside  the  security 
taken  by  him,  with  costs.2 

The  same  principle  was  applied  in  the  first  circuit  in  New- York,  by 
the  assistant  vice  chancellor,  in  setting  aside,  on  an  original  bill,  filnd 
for  that  purpose,  a  decree  obtained  by  fraud.  The  case  was,  shortly,  this : 
A  mortgagee  having  two  mortgages  for  the  same  debt,  one  on  the  prim  i- 
pal  debtor's  lands,  and  one  on  lands  of  a  surety,  whose  infant  heir  suc- 
ceeded thereto ;  after  the  debt  was  satisfied  by  a  conveyance  of  the  form- 
er, the  mortgagee  filed  a  bill  against  the  infant  to  foreclose  the  mort- 
gage on  the  lands  of  the  latter,  in  which  he  claimed  the  mortgage  money 
to  be  due,  and  the  infant  answered  by  his  guardian  ad  litem, ;  no  defense 
was  set  up,  the  usual  decree  for  a  foreclosure  and  sale  was  made,  and 
the  infant's  lands  were  sold  under  the  decree,  the  mortgagee  becoming 
the  purchaser  of  a  portion  of  the  same  ;  it  was  held  that  the  decnee  was 
obtained  by  fraud,  and  it  was  set  aside.3 

But  although  equity  can  give  relief  against  a  judgment  or  decree,  and 
even  in  the  case  of  a  judgment  after  verdict,  yet  it  is  a  settled  principle 

1  Thompson  v.  Graham,  1  Paige,  384.  R.  135.  Bradick  v.  Gee,  Amhler,  229. 
Apthorpe  v.  Comstock,  Ilopk.  148.  Barnsly  v.  Powell,  1  Yes.  289, 120.   Rich- 

2  Peigal  v.  Wood,  1  J.  Ch.  R.  402.  mond  v.  Tayleur,  1  P.  Wms.  734.     Lord 
«  Loomis  t.  Wheelwright.  3  Sand.  Ch.     v.  Mansell  2  id.  73. 


Ch.  3.]  "Relief  agaikst  3'i  dgments.  161 

that  it  will  not  do  so  in  the  latter  case,  unless  the  complaining  party  can 
Impeach  the  justice  of  the  verdict  by  facts,  or  on  grounds  of  which  he 
could  not  have  availed  himself,  or  was  prevented  from  doing  it,  by  fraud 
or  accident,  or  by  the  acts  of  the  other  party,  unmixed  with  negligence 
or  fault  on  his  part.1  The  rule  on  this  subject  was  thus  stated  by  Mar- 
shall, Ch.  J.,  in  a  case  in  the  supreme  court  of  the  United  States  :*  With- 
out attempting  to  draw  any  precise  line  to  which  courts  of  equity  will 
■advance,  and  which  they  cannot  pass,  in  restraining  parties  from  availing 
themselves  of  judgments  obtained  at  law,  it  may  safely  be  said,  that  any 
fact  which  clearly  proves  it  to  be  against  conscience  to  execute  a  judg- 
ment, and  of  which  the  injured  party  could  not  have  availed  himself  in 
a  court  of  law  ;  or  of  which  he  might  have  availed  himself  at  law,  but 
was  prevented  by  fraud  or  accident,  unmixed  with  any  fault  or  negligence 
in  himself,  or  his  agents,  will  justify  an  application  to  a  court  of  chancery./ 
On  the  other  hand,  it  may  with  equal  safety  be  laid  down,  as  a  general 
rule,  that  a  defense  cannot  be  set  up  in  equity  which  has  been  fully  and 
fairly  tried  at  law,  although  it  may  be  of  the  opinion  that  the  defense 
ought  to  have  been  sustained  at  law.  These  principles  were  approved  by 
the  vice  chancellor  of  the  8th  district,  and  by  the  chancellor  of  New- 
York,  on  appeal,  in  a  recent  case.3 

When  the  defendant  has  attempted  his  defense  tit  law,  and  failed  for 
want  of  proof;'  when  a  matter  of  fact,  properly  a  subject  of  defense  at 
law,  is  not  litigated  at  law  ;s  and  when  a  party  goes  to  trial  at  law,  and 
is  disappointed  in  the  weight  of  his  evidence,  or  neglects  to  move  for  a 
new  trial,  or  neglects  to  except  to  an  improper  opinion  against  him  at 
law,6  equity  will  not,  in  either  case,  afford  relief.  In  none  of  these  cases 
is  any  fraud  attributable  to  the  other  party,  nor  do  they  fall  within  the 
principle  of  accident,  or  mistake.  The  failure  of  the  party  was  rather 
owing  to  his  want  of  vigilance,  or  to  that  class  of  misfortunes  against 
which  equity  does  not  relieve.  There  are  cases  where  the  court,  in  which 
the  action  is  pending,  will  award  a  new  trial  upon  terms,  when  a  court  of 
equity  would  not  afford  relief  by  an  original  action.  The  remarks  of  the 
learned  chancellor,  in  an  early  case,7  are  extremely  appropriate  to  tho 
present    subject:    Before    courts  of  law,    said  the  chancellor,   were  in 

1  Duncan  v.  Lyon,  3  J.  Ch.  R.  356.  6  Stone  v.  Moody,  6  Yerg.  81. 

2  Marine  Ins.  Co.  v.  Hodgson,  7 Cranch,        6  Veech  v.  Pennebaker,  2  Bibb,  326. 
832.  7  Simpson  v.  Hart,  1  J.  Ch.  R.  97,  98. 

'  Patterson  v.  Bangs,  9  Paige,  630,  634.  Barker  v.  Elking,  id.  455.  Smith  v.  Lowry 

French  v.  Gardner,  7  Porter,  549.    Mark  id.  320.     Lansing  v.  Eddy,  id.  49.    Haw- 

T.  Candiff,  6  id.  24.  ley  v.  Mancius,  7  id.  1S2      McVickar  v. 

4  Harrison  v.  Harrison,  1  Litt.  137.  Wolcott,  4  J.  R.  510. 

Eq.  Job.  21 


162  Of  Fraud.  [Ch.  3. 

the  exercise  of  their  present  liberal  jurisdiction  over  the  subject  of  new 
trials,  the  parties  were  frequently  forced  into  equity,  to  be  relieved  from 
oppressive  verdicts.  (3  Bl.  Com.  388.)  Since,  however,  that  jurisdiction 
has  been  well  established,  and  freely  exercised,  on  equitable  as  well  as 
legal  grounds,  the  party  failing  in  his  application  at  law  for  a  new  trial, 
will  not  be  relieved  in  equity,  upon  the  merits  already  discussed,  and  fully 
within  the  discretion  of  a  court  of  law.  Where  courts  of  law  and  equity 
have  concurrent  jurisdiction  over  a  question,  and  it  receives  a  decision  at 
law,  equity  can  no  more  re-examine  it  than  the  courts  of  law,  in  a  similar 
case,  could  re-examine  a  decree  of  the  court  of  chancery.  In  the  case  of 
Bateman  v.  Willoe,  (1  Schoale  &,  Lef.  201.)  we  have  the  opinion  and  de- 
cision of  so  high  and  respectable  authority  as  Lord  Redesdale,  on  the  sub- 
ject now  under  consideration.  A  verdict  was  obtained,  at  law,  against 
the  plaintiff,  which  he  considered  unjust,  and  having  failed  in  his  applica- 
tion for  a  new  trial,  on  account  of  a  defective  notice  of  the  motion,  he 
sought  relief  in  equity ;  but  the  bill  was  dismissed,  and  Lord  Redesdale 
said,  that  he  could  not  find  any  ground  whatever  for  a  court  of  equity  to 
interfere,  because  a  party  had  not  brought  evidence  which  was  in  his 
power  at  the  trial,  or  because  he  had  neglected  to  apply,  in  due  time,  for 
a  new  trial.  There  are  cases,  he  observed,  cognizable  at  law,  and 
also  in  equity,  and  of  which  cognizance  cannot  be  effectually  taken  at  law, 
and  therefore  equity  does  sometimes  interfere.  So,  where  a  verdict  has 
been  obtained  by  fraud,  or  where  a  party  has  possessed  himself,  im- 
properly, of  something,  by  means  of  which  he  has  an  unconscientious  ad- 
vantage at  law,  which  equity  will  either  put  out  of  the  way,  or  restrain 
him  from  using  ;  but,  without  circumstances  of  that  kind,  I  do  not  know, 
says  Lord  Redesdale,  "that  equity  ever  does  interfere  to  grant  a  trial 
of  a  matter  tchich  has  already  been  discussed  in  a  court  of  law.  a  mat- 
ter capable  of  being  discussed  there,  and  over  which  the  court  of  laic 
had  full  jurisdiction"  Although  the  case  of  Simpson  v.  Hart  was  re- 
versed by  the  court  of  errors,  it  was  upon  a  ground  not  impugning  the 
foregoing  principles,  but  they  were,  on  the  contrary,  expressly  approved 
oy  Spencer,  justice,  who  delivered  the  prevailing  opinion  of  that  court.1 
The  settled  doctrine  of  the  English  chancery  is,  not  to  relieve  against 
a  judgment  at  law,  on  the  ground  of  its  being  contrary  to  equity,  unless 
the  defendant  below  was  ignorant  of  the  fact  in  question,  pending  the 
suit,  or  it  could  not  have  been  received  as  a  defense,  and  the  plaintiff 
knew,  of  his  own  knowledge,  the  fact  to  be  otherwise  than  as  found  by 
the  jury.2     The  doctrine  of  the  court  of  errors,  in  the  early  case  of  Le 

1  Simpson  v.  Hart,  14  J.  E.  77.  *  Williams  v.  Lee.  3  Atk.  221. 


Ch.  S.j  Relief  against  Judgments.  103 

Guen  v.  Gouverneur  &  Kemble,1  was,  that  where  a  party  to  a  suit  at  law 
had  knowledge  of  a  fraud,  or  other  matter  of  defense,  in  time  to  avail  him 
self  of  it  at  the  trial  at  law,  and  he  neglected  to  do  so,  he  could  not  after- 
wards obtain  relief  in  a  court  of  equity  against  the  judgment  at  law,  on 
the  ground  of  such  fraud,  or  matter  of  defense,  that  he  might  have  set 
up  at  the  trial,  but  is  forever  concluded  by  the  judgment.  Although  re- 
lief against  a  judgment  or  decree,  for  fraud,  may  be  obtained  in  the  same 
court,  by  motion,  or  petition,  yet  it  may  also  be  obtained  by  an  original 
bill  in  the  nature  of  a  bill  of  review.2  Hence,  it  would  seem,  that  not- 
withstanding law  and  equity  are  administered  in  this  state  by  the  same 
tribunal,  it  is  not  necessary  that  relief  against  a  judgment,  obtained  by 
fraud,  should  be  sought  by  a  motion  addressed  to  the  court  in  which  the 
judgment  was  obtained,  but  may  be  invoked  by  an  original  action,  in  which 
the  relief  prayed  is  to  set  aside  the  judgment. 

There  is  no  case  in  which  equity  has  ever  undertaken  to  question  the 
judgment  of  another  court  for  'mere  irregularity.  The  power  in  such 
case  is  always  exercised  by  the  court  in  which  the  judgment  was  given, 
and  the  relief  is  frequently  granted  upon  terms.  The  power  in  such 
cases  rests  in  the  sound  discretion  of  the  court.3 

The  decision  of  a  court  on  a  special  motion  has  not  the  same  conclusive 
effect  as  a  judgment  or  decree.  Such  decisions  are  frequently  made, 
without  much  discussion.  They  cannot  be  thrown  into  the  shape  of  a 
record,  and  become  the  subject  of  review  in  any  other  court.  In  the 
same  court  they  are  not  considered  so  final  and  decisive  as  to  furnish  a 
bar  to  another  and  further  discussion  of  the  question.  Much  less  should 
they  be  treated  as  falling  within  the  rule  of  res  judicata,  and  preclude 
a  curt  of  equity  from  reinvestigating  the  same  matter.4 

Equity  refuses  to  interfere,  where  the  grounds  advanced  might  have 
been  used  as  a  defense  at  law,  but  for  the  negligence  and  inattention  of 
the  part}r.5  If,  therefore,  at  the  time  of  the  trial,  he  had  full  knowledge 
of  the  fraud,  or  other  matter  of  defense,  and  neglected  to  avail  himself 
of  it,  he  is  concluded  by  the  judgment.6  But  if  it  be  doubtful  whether 
a  court  of  law  can  take  cognizance  of  the  defense,  and  there  exists  nc 

1  1  J.  Cas.  456.  *  Simpson  v.  Hart,  14  J.  R.  7G.     Arden 

■  Sheldon  v.   Fortescue,   Aland,  3  P.  v.  Pattison,  5  J.  Ch.  R.  52. 

Wins.  111.    Munsell  v.  M»rgan,3  Bro.  C.  *  Duncan  v.  Lyon,  3  id.  356.     Cowell 

C.  74.    Loyd  v.  Manscll,  2  P.  Wms.  73.  v.  Price,  1  Bibb,  173.    Kenny  v.  Ogden, 

1  Sliottenkirk  v.  Wheeler,  3  J.  Ch.  R.  2  Green's  Ch.  R.  168.     Reeves  v.  Hogan, 

2S0.    De  Reimer  v.  De  Cantillon,  4  id.  92.  Cooke,  175. 

French  v.  Shotn-el!,  6  id.  235.  •  LeGuen  v.  Gouvernuer,  1  J.  Cas.  436. 

Winchester  v.  Jackson,  3  llayw  313. 


lo4  Of  Fraud  [Ch.  3 

doubt  of  the  jurisdiction  of  a  court  of  equity ;  and  if,  in  such  a  case,  a 
defendant  at  law,  under  the  influence  of  such  doubt,  omits  to  make  his 
defense,  or  if  he  brings  it  forward  and  it  be  overruled,  under  the  idea 
that  it  is  not  a  defense  at  law,  a  court  of  equity  may  afford  relief  notwith- 
standing the  trial  at  law.1  In  the  case  of  Bateman  v.  Willoe,2  Lord  Redes 
dale  said,  there  may  be  cases  cognizable  at  law,  and  also  in  equity,  and 
of  which  cognizance  cannot  be  effectually  taken  at  law,  and  therefuro 
equity  does  sometimes  interfere  ;  as  in  complicated  accounts,  when  the 
party  has  not  made  defense,  because  it  was  impossible  for  him  to  do  it 
effectually  at  law. 

An  award  stands  upon  the  same  footing  as  a  judgment,  with  respect  to 
the  power  of  a  court  of  equity  to  relieve  against  it.  As  was  well  remarked 
by  Van  Vechten,  senator,  in  a  leading  case,  the  parties  to  an  arbitrament 
elect  their  own  judges,  and  voluntarily  clothe  them  with  powers  commer- 
surate  to  a  final  decision  on  their  rights,  unshackled  by  legal  forms  an  I 
technical  rules.  Every  submission  may,  therefore,  be  considered  as  evinc- 
ing the  intent  of  the  parties  to  transfer  the  power  of  deciding  finallp 
upon  the  matters  submitted,  from  the  judicial  tribunals  to  the  arbitrators* s 

The  power  of  the  court  to  set  aside  an  award  for  mistakes  has  already 
been  alluded  to,  and  the  general  subject  of  awards,  in  various  other  asi- 
pects,  may,  perhaps,  be  noticed  hereafter.  At  present  we  are  to  inquire 
as  to  the  remedy,  where  the  award  is  obtained  by  fraud. 

It  seems  to  be  settled,  that  if  an  award  is  obtained  by  false  and  fraudu- 
lent statements  of  a  party,4  or  by  the  corruption  and  partiality  of  the 
arbitrators,  or  by  the  suppression  and  concealment  of  material  facts  by 
either  of  the  parties,  if  the  knowledge  of  those  facts  would  have  produced 
a  different  result,  it  is  a  sufficient  ground  for  setting  it  aside.5  In  the  last 
mentioned  case,  the  refusal  of  the  arbitrators  to  hear  legal,  pertinent  and 
material  evidence,  was  held  to  be  such  gross  misconduct  in  the  arbitrators, 
as  to  afford  good  cause,  upon  well  established  principles  of  equity,  for 
setting  aside  the  award.  The  party  objecting  to  the  evidence,  in  such  a 
case,  may  well  be  treated  as  participating  in  the  gross  misconduct  of  the 
arbitrators.  But  when  there  is  no  charge  of  corruption,  partiality,  or 
undue  practice  in  the  arbitrators,  an  award  will  not  be  set  aside,  however 
unreasonable  or  unjust  it  may  be.!     In  this  position,  it  is  assumed,  that 

1  King  v.  Baldwin,  17  J.  R.  389,  per        3  Van  Cortland  v.  Underbill,  17  J.  K. 
Spencer,  Ch.  J.    Rathbone  v.  Warren,  10    430. 
id.  587.  *  Bulkly  v.  Starr,  2  Day,  553. 

3  1  Scb.  &  Lefr.  205.  "  Van  Cortland  v.Underhill,  17  J.  R.  405. 

•  Todd  v.  Barlow.  2  J.  Ch.  R.  551. 


Ch.  3.J  Relief  against  Patents.  165 

there  was  no  fraud  in  the  prevailing  party,  and  that  the  unreasonableness 
of  the  award  was  the  mere  result  of  the  error  in  judgment  of  the 
Arbitrators. 


Letters  patent  for  conveying  real  estate,  may  be  set  aside  in  equity, 
if  the  same  were  obtained  by  fraud.  This  was  so  held  in  an  early  case, 
in  1G84,1  and  the  same  was  approved  by  the  supreme  court  of  New- York, 
in  Jackson  v.  Lawton.2  In  the  latter  case,  two  patents  had  been  granted 
for  the  same  land.  The  second  was,  of  course,  inoperative,  until  the  first 
was  set  aside.  The  court  said,  that  if  the  first  was  issued  by  fraud,  or 
on  false  suggestion,  unless  the  fraud  or  mistake  appear  on  the  face  of  the 
patent,  it  is  not  void,  but  voidable  only.  And  if  it  be  only  voidable,  it 
can  be  avoided  only  by  scire  facias,  or  by  bill  or  information,  in  the 
court  of  chancery.  In  Maryland,  say  the  court,  the  practice  has  long 
been  settled  to  vacate  patents  by  a  decree  in  chancery,  founded  on  a 
proceeding  by  bill,  or  information,  or  scire  facias.  (1  II.  &  M.  23,  92, 
165.  2  id.  201,  244.)  And  in  one  of  the  cases  it  was  admitted  by  the 
chancellor,  (2  id.  141,)  that  as  long  as  a  grant  remained  unrepealed  by 
chancery,  it  must  prevail  at  law  against  a  younger  grant. 

The  practice  of  going  behind  the  patent  for  lands  when  granted  by  the 
general  government,  on  allegations  of  fraud  in  the  patentee,  in  obtaining 
the  patent,  and  of  examining  into  the  equities  of  other  persons  entitled 
or  claiming  to  be  entitled  to  the  patent,  and  setting  aside  the  same  if 
fraudulently  obtained,  has  been  long  judicially  settled  in  Ohio  and  Ken- 
tucky, and  the  same  practice  been  pursued  by  the  supreme  court  of  the 
United  States.3  The  relief  has  in  all  cases  been  granted  by  bill  in 
equity,  and  Marshall,  Ch.  J.,  in  one  of  the  cases,  while  speaking  of  avoid- 
ing a  grant  for  causes  existing  anterior  to  its  being  issued,  observes,  that 
there  are  some  things  so  essential  to  the  validity  of  the  contract,  that 
the  great  principles  of  justice  and  of  law  would  be  violated,  did  there  not 
exist  some  tribunal  to  which  an  injured  party  might  appeal  ;  and  in  which 
the  means  by  which  an  elder  title  was  acquired  might  be  examined.  In 
general,  a  court  of  equity  appears  to  be  a  tribunal  better  adapted  to  this 
object  than  a  court  of  law.  On  an  ejectment,  the  pleadings  give  no 
notice  of  these  latent  defects,  of  which  the  party  means  to  avail  himself; 
and,  should  he  be  allowed  to  use  them,  the  holder  of  the  elder  grant 


1  Att'y  Gen.  v.  Vernon,  1  Vern.  277.  Taylor,  5  Oanch,  196.     Polk's  Lessee  v. 

a  10  J.  R.  25,  20.     Jackson  v.  Hart,  12  Wendell,  9  id.  93.     5  Wheat.  298.    Miller 

id.  77.     2  Bl.  Com.  348.  v.  Kerr,  7  id.  1.     Iloffnagle  v.  Anderson, 

■  Brush  v.  Ware,  1.3  Pet.  93.     Bodly  v.  id.  213. 


166  Of  Fraitd.  [Ch.  3 

might  often  be  surmised.  But  in  equity  the  specific  points  must  be 
brought  to  view  :  the  various  circumstances  connected  with  these  points 
are  considered  ;  and  all  the  testimony  respecting  them  may  be  laid  be- 
fore the  court.  The  defects  in  the  title  are  the  particular  objects  of 
investigation  ;  and  a  decision  of  a  court  in  the  last  resort  upon  them  is 
decisive.  The  court  may,  on  a  view  of  the  whole  case,  annex  equitable 
conditions  to  its  decree,  or  order  what  may  be  reasonable,  without  abso- 
lutely avoiding  a  whole  grant.  In  general,  then,  a  court  of  equity  is  the 
more  eligible  tribunal  for  these  questions  ;  and  they  ought  to  be  excluded 
from  a  court  of  law.  But  there  are  cases  in  which  a  grant  is  absolutely 
void  ;  as  where  the  state  has  no  title  to  the  thing  granted ;  or  where  the 
officer  had  no  authority  to  issue  the  grant.  In  such  cases,  the  validity 
of  the  grant  is  necessarily  examinable  at  law.1 

In  New- York  it  is  enacted,  that  when  it  shall  be  alleged  that  letters 
patent  were  obtained  by  means  of  some  fraudulent  suggestion,  or  con- 
cealment of  a  material  fact,  made  by  the  person  to  whom  the  same  were 
issued,  or  made  with  his  consent  or  knowledge ;  2d,  when  it  shall  be  alleged 
that  such  letters  patent  were  issued  through  mistake,  and  in  ignorance 
of  some  material  fact ;  3d,  when  the  patentee,  or  those  lawfully  claiming 
under  him,  shall  have  done  or  omitted  any  act,  in  violation  of  the  terms 
and  conditions  upon  which  such  letters  patent  were  granted ;  or  shall, 
by  any  other  means,  have  forfeited  the  interest  acquired  under  the  same, 
a  writ  of  scire  facias  may  be  issued  out  of  the  supreme  court,  in  behalf 
of  the  people,  upon  the  relation  of  the  attorney  general,  or  of  any  private 
person,  for  the  purpose  of  vacating  and  annulling  such  letters  patent.2 
And  this  provision  is  adopted  by  the  code  of  procedure  f  and  has  been 
acted  upon  by  the  attorney  general  in  a  recent  case.4  But  this  proceed- 
ing is  supposed  to  be  in  substance  according  to  the  common  law,5  and 
does  not,  therefore,  exclude  a  resort  to  equity  to  obtain  relief. 

The  contract  of  insurance  has,  in  some  instances,  given  rise  to  the 
exercise  of  the  authority  of  courts  of  equity.  This  contract  is  either  a 
contract  of  indemnity  against  the  perils  of  the  sea,  if  it  be  a  marine  insur- 
ance ;6   or,  if  a  fire  policy,  a  contract  of  indemnity  against  loss  by  fire  ;1 

1  Polk's  Lessees  v.  Wendell,  9  Cranch,  affirmed  by  court  of  appeals,  Dec.  term, 

87,  per  Marshall,  Ch.  J.,  in  pp.  291,  292,  1853. 

Cond.  Rep.  5  See  reviser's  note  to  the  section. 

*  2  R.  S.  578,  §  12.  6  1  Duer  on  Ins.  Lee.  1. 

*  Code  of  Procedure,  §  433.  7  Murdock  v.  Chenango  ilut.  Ins.  Co. 
4  The  People  v.  Clark,  10  Barb.  I'O,  2  Comst.  210. 


Ch.  o.J        Relief  to  set  aside  Policy  of  Insurance.  1G7 

or,  if  an  insurance  on  life,  it  is  a  contract  of  indemnity,  depending  upon 
the  death  of  the  person  whose  life  is  insured.  All  the  writers  on  the 
subject  agree  that  it  is  eminently  a  contract  of  good  faith,  in  which  the 
underwriter  reposes  confidence  in  the  insured,  and  has  a  right  to  exact 
from  him  all  needful  information,  not  within  his  own  knowledge,  that  will 
enable  him  to  determine  the  nature  and  character  of  the  risk.  It  is, 
accordingly,  an  established  principle,  that  a  misrepresentation  to  the 
underwriter,  or  concealment  from  him  of  a  material  fact  affecting  the  risk, 
will  avoid  the  policy.  The  consequences  are  the  same,  whether  the  mis- 
representation or  concealment  be  the  result  of  accident,  mistake,  or  fraud. 
The  remarks  of  Lord  Mansfield,  in  a  leading  case,1  contain  the  principle 
applicable  to  this  contract.  The  special  facts,  upon  which  the  contingent 
chance  is  to  be  computed,  says  his  lordship,  lie  most  commonly  in  the 
knowledge  of  the  insured  only :  the  underwriter  trusts  to  his  representa- 
tion, and  proceeds  upon  confidence  that  he  does  not  keep  back  any  circum- 
stance in  his  knowledge,  to  mislead  the  underwriter  into  a  belief  that  the 
circumstance  does  not  exist,  and  to  induce  him  to  estimate  the  risk  as  if 
it  did  not  exist.  The  keeping  back  such  circumstance  is  a  fraud,  and 
therefore  the  policy  is  void.  Although  the  suppression  should  happen 
through  mistake,  without  any  fraudulent  intention ;  yet,  still  the  under- 
writer is  deceived,  and  the  policy  is  void ;  because  the  risk  run  is  really 
different  from  the  risk  understood  and  intended  to  be  run,  at  the  time  of 
the  agreement.  The  policy  would  be  equally  void,  against  the  under- 
writer, if  the  insured  concealed  ;  as  if,  for  example,  he  insured  a  ship  on 
her  voyage,  which  he  privately  knew  to  be  arrived  ;  and  an  action  would 
lie  to  recover  back  the  premium.  Good  faith  forbids  either  party,  by  con- 
cealing what  he  privately  knows,  to  draw  the  other  into  a  bargain,  from 
his  ignorance  of  that  fact,  and  his  believing  the  contrary. 

But  either  party  may  be  innocently  silent,  as  to  grounds  open  to  both, 
to  exercise  their  judgment  upon.  Aliud  est  celare ;  aliud  tacere.  The 
insured  need  not  mention  what  the  underwriter  knows,  or  what  he  ou^ht 
to  know  ;  or  what  he  takes  upon  himself  the  knowledge  of ;  or  what  he 
waives  being  informed  of.2 

"Where,  in  a  fire  policy,  the  insured  conceals  a  fact,  which  the  insurer 
has  a  right  to  know,  the  policy  is  void.  As  where  goods  in  a  store  are 
insured  against  fire,  the  condition  annexed  to  the  policy  requiring  a  de- 
scription of  the  property  insured,  and  "  its  relative  situation  as  to  other 

'  Carter  v.  Boehm,  3  Bur.  1905.  214,  302.     1  Marsh,  on  In.  450,  451,  464. 

1  Laidlow  v.  Organ,  2  Wheat  178.     1     Broom's  Legal  Maxims.  882. 
Arnold  on  Tn.  537  to  53'.).     1  Phil,  on  In. 


168  Of  Fraud.  [Ch.  3 

buildings,  distances  from  each,  if  less  than  ten  rods,"  and  tl.  e  application 
for  the  insurance  is  made  a  part  of  the  policy,  any  misstatement  in  such 
.application,  as  to  the  situation  of  the  store,  in  regard  to  other  buildings, 
renders  the  policy  void.1  Here  an  affirmative  statement  of  the  fact  would 
be  a  warranty.  But  the  assured  omitted  to  give  the  information  which 
the  conditions  of  the  application  required,  and  the  learned  judge  thought 
such  omission  a  concealment  of  a  fact  which  the  insurer  had  a  ri^ht  to 
know  ;  and  for  that  reason  the  policy  was  invalid  ;  it  being  a  part  of  the 
contract,  that  any  "concealment  in  the  application"  should  render  the 
insurance  void.2 

In  most  instances,  the  question  as  to  the  validity  of  a  policy  of  insur- 
ance, and  whether  it  has,  or  has  not,  been  rendered  void  by  reason  of 
fraud,  are  cases  at  law,  and  in  general  the  remedy  at  law,  in  an  action 
upon  the  policy,  is  plenary  and  efficient.  But  a  court  of  equity  can  inter- 
fere before  or  after  a  loss  has  occurred,  and  require  the  policy  to  be 
annulled  on  the  ground  of  fraud.  Thus,  where  a  merchant,  having  a 
doubtful  account  of  his  ship,  insured  it  without  acquainting  the  insurers 
of  the  clanger  the  ship  was  in,  the  concealment  was  held  to  be  a  fraud, 
and  the  policy  was  ordered  to  be  given  up  with  costs,  but  the  premium 
was  required  to  be  returned.3  In  like  manner,  an  insurance  on  a  life, 
obtained  by  fraud,  was  set  aside  in  equity,  with  costs,  and  the  premium 
directed  to  go  as  part  of  the  costs.4  But  courts  of  equity  in  modern 
times  do  not  interfere  in  insurance  causes,  unless  in  some  extraordinary 
cases.5 

The  principle,  that  a  court  of  equity  will  relieve  against  contracts 
fraudulently  made,  has  been  applied  to  instruments  under  seal,  an  well  as 
oral  contracts.  Where  the  one  party  is  under  an  obligation  to  make  a 
disclosure,  and  the  other  is  entitled  to  the  information  which  the  first 
conceals,  equity  will  relieve  and  set  aside  a  conveyance  thus  fraudulently 
obtained.  Thus,  where  a  dv  risee,  under  a  will  defectively  executed, 
represented  the  same  to  be  properly  attested,  and  concealed  the  defect 
from  the  heir,  who  was  ignorant  thereof,  and  thus  obtained  from  him  a 
release,  the  court  adjudged  the  release  to  be  invalid,  and  set  it  aside  for 
the  fraud.  Here  was  both  the  suggestio  falsi  and  the  suppressio  veri, 
either  of  which  was  a  good  ground  for  relief.8 

1  \nison  v.  Herkimer  Co.  Mut.  In.  Co.  "  Whittingkam  v.  Thornburgh,  2  Vera. 
2  Seld.  53.  206. 

8  Id.  Gates  v.  Madison  Ins.  Co.  2  6  Charleston  Insurance  Co.  v.  Potter, 
Comst.  48,  51.  3  Desaus.  6. 

•  De  Costa  v.  Scandret,  2  P.  "Wins.  170.        6  Broderick  v.  Broderick,  1  P.  Wins, 

139, 


Oli.  3. J  Relief  against  Releases.  169 

The  case  of  Wheeler  v.  Smith,1  already  cited  under  the  head  of  mis- 
take, might  as  appropriately  be  quoted  here.  The  relation  which  the 
parties  stood  to  each  other,  the  confidence  -which  the  releasor  reposed  in 
the  other  parties,  his  necessitous  circumstances,  the  disproportion  between 
the  value  of  the  property  and  the  consideration  of  the  release,  would  have 
justified  a  decree,  setting  the  release  aside  for  fraud. 

It  is  the  settled  doctrine  of  the  courts  of  equity,  that  deeds  and  other 
instruments  fraudulently  obtained,  and  which  are  attempted  to  be  inequi- 
tably set  up,  may  be  ordered  to  be  delivered  up  and  canceled,  and,  if  need 
be,  a  reconveyance  ordered.  Where  a  defendant  procured  a  release, 
without  consideration,  from  an  executor,  who  had  renounced  the  exe- 
cution of  the  will,  and  had  become  insolvent;  and  the  release  was 
attempted  to  be  used  for  the  purpose  of  defeating  the  claims  of  the  act- 
ing executor,  who  knew  nothing  of  the  circumstances,  and  whom  the  de- 
fondant  intended  to  defraud  ;  it  was  held  to  be  a  proper  case  for  the 
interposition  of  a  court  of  equity.2 

In  all  cases  of  fraud,  whether  by  misrepresentation  or  concealment,  if 
the  injured  party,  with  a  full  knowledge  that  he  has  been  defrauded  by 
another,  settles  the  matter  and  releases  the  party  who  has  defrauded  him, 
he  has  no  longer  any  legal  or  equitable  claim  to  relief  against  such  volun- 
tary act.3  An  accord  and  satisfaction  is  equally  available  as  a  defense,  in 
equity  as  at  law.4 


SECTION  II. 

OF    TRANSACTIONS    BETWEEN    PARTIES    STANDING    IN    CONFIDENTIAL    RELATIONS 
TO    EACH    OTHER,    AND    OF    UNDUE    INFLUENCE. 

There  is  a  large  class  of  cases,  relic vablc  in  equity,  arising  from  the 
peculiar  relation  which  the  parties  occupy  with  respect  to  each  other,  in 
which  confidence  is  reposed  by  the  one  party,  and  an  influence  is  acquired 
by  the  other.  A  learned  judge  in  the  court  of  appeals  of  New- York,  in 
a  recent  ca^e,  well  remarked,  that  a  court  of  equity  interposes  its  benign 
jurisdiction  to  set  aside  instruments  executed  between  persons  standing 

1  9  IToward,  55.     See  ante,  p.  65.  4  Strong  v.  Holmes,   7   Cowen,   224. 

2  Thompson  v.  Graham,  1  Paige,  384.    Bac.  Abr.  tit.  Accord  and  Satisfaction,  A. 
4  Parsons  v.  Hughs,  9  id.  5!il. 

Eq.  Ji/r,  22 


170  Of  Fraud  [Ch.  a 

in  the  relation  of  Parent  and  Child,  Guai  Han  and  Ward,  Physician  and 
Patient,  Solicitor  and  Client,  and  in  various  other  relations,  in  which  one 
party  is  so  situated  as  to  exercise  a  controlling  influence  over  the  will 
conduct  and  interests  of  another.1  Under  this  same  head  he  might  have 
classed,  also,  the  relation  of  Principal  and  Agent,  Principal  and  Surety 
Landlord  and  Tenant,  Ancestor  and  Heir,  Husband  and  Wife,  Trustee 
and  Cestui  que  Trust,  Executors  and  Administrators,  and  Creditors,  Lega- 
tees and  Distributees,  Appointor  and  Appointee  under  powers,  and  Part- 
ners and  Part  Owners.  In  these,  and  the  like  cases,  the  law  requires  the 
utmost  good  faith,  in  order  to  prevent  undue  advantage  from  the  unlimited 
confidence  which  the  relation  creates. 

Although  some  of  the  cases  under  this  branch  of  the  subject  will  bo 
considered  more  fully  under  other  heads,  and  in  some  the  line  between 
actual  and  constructive  fraud  cannot  be  accurately  drawn,  it  will  not  be 
improper  to  pass  under  review  the  principle  by  which  the  court  is  gov- 
erned in  interposing  its  aid,  and  some  illustrations  from  the  adjudged 
cases. 

To  make  any  agreement  valid  requires  the  assent  of  the  understanding 
of  the  several  parties  thereto.  This  implies  freedom  of  action,  as  well  as 
the  exercise  of  reason,  accompanied  with  deliberation  ;  the  mind  weighing, 
as  in  a  balance,  the  good  and  evil  on  either  side.  Every  true  consent  sup- 
poses, 1st,  a  physical  power  ;  2d,  a  moral  power  of  consenting  ;  and  3d,  a 
serious  and  free  use  of  them.  Hence,  it  follows,  that  persona  under 
duress,  idiots,  madmen  and  infants,  are  in  general  incapable  of  making 
contracts,  either  from  a  want  of  freedom  of  action,  or  an  ability  to  judgo 
of  their  own  actions.2  This  disability  is  not  in  all  cases  total,  but  siib 
modo  only.3  But  the  persons  laboring  under  it  are,  at  all  times,  tho 
peculiar  objects  of  the  paternal  guardianship  and  protection  of  a  court  of 
equity. 

It  is  upon  this  principle  that  courts  of  equity  watch,  with  extreme 
jealousy,  all  contracts  made  by  persons,  when  there  is  any  ground  to 
suspect  imposition,  oppression,  or  undue  advantage  being  taken  by  ono 
of  the  parties  ;  or  when  one  trusts  to  another  w7ith  a  blind  and  credulous 
confidence  ;  or  when  one  of  the  parties,  from  whom  an  advantage  has  been 
obtained,  was  in  circumstances  of  extreme  necessity  and  distress.  Undue 
influence  can  hardly  ever  obtain  its  object  without  some  degree  of 
fraud  ;  but  the  cases  show  that  it  may  exist  without  actual  moral  fraud. 

'  Sears  v.  Shaffer,  2  Seld.  272,  per  Grid-        '  Fonbl.  Eq.  B.  1,  ch.  2.  §§  1  and  2. 
ley,  J.;  S.  C,  1  Barb.  S.  0.  R.  410,  418,        3  2  Bl.  Cora.  291. 
Opinion  of  Barculo,  J. 


Cli.  3.J      Transactions  between  Attorney  and  Client.       171 

It  has  a  nearer  affinity  to  duress  than  to  fraud,  and  in  some  cases  it  may 
contain  a  mixture  of  both. 

In  describing  what  undue  influence  is,  it  was  said  by  Lord  Langdalfe, 
on  one  occasion,1  that  there  are  transactions  in  which  there  is  so  great 
an  inequality  between  the  contracting  parties — so  much  of  habitual  exer 
cise  of  power  on  the  one  side,  and  habitual  submission  on  the  other — that 
without  any  proof  of  the  exercise  of  power  beyond  that  which  may  be 
inferred  from  the  nature  of  the  transaction  itself,  a  court  of  equity  will 
impute  an  exercise  of  undue  influence.  Such  cases  have  not  unfrequently 
occurred  in  transactions  between  parent  and  child,  and  sometimes  in 
transactions  between  persons  standing  to  each  other  in  the  relation  of 
solicitor  and  client.  ^ 

But  other  cases  do  not  rest  solely  on  the  nature  of  the  transaction, 
and  the  fact  of  habitual,  or  occasional  influence ;  it  is  required  to  show 
that  some  advantage  was  taken,  or  that  there  was  some  fear,  some  use 
of  threat,  or  of  undue  practice,  or  persuasion. 

When  undue  influence  is  to  be  inferred  from  the  nature  of  the  transac 
tion,  or  when  the  transaction  itself  is  contrary  to  the  policy  of  the  law, 
it  is  the  province  of  the  court  to  determine  the  point,  and  the  question 
ought  not  to  be  sent  to  a  jury. 

In  the  case  he  was  considering,  an  issue  had  been  awarded  out  of 
chancery,  to  try  whether  a  deed  had  been  obtained  by  the  attorney  from 
his  client  by  fraud,  or  undue  influence.  The  jury  having  found  there 
was  no  fraud,  and  that  it  was  obtained  by  undue  influence,  a  motion  was 
made  to  set  aside  the  verdict  and  for  a  new  trial,  for  the  reason  that  no 
sufficient  evidence  appeared  to  justify  the  finding  of  undue  influence. 
The  deed  was  given  by  the  client  to  his  attorney,  on  account  of  a  bill  of 
costs  due  from  the  former  to  the  latter.  There  was  no  evidence  of  the 
exercise  of  power  by  the  attorney  over  his  client  in  the  matter,  and  the 
transaction  was  known  to  the  family  of  the  client,  several  days  before  the 
deed  was  executed.  As  the  testimony  is  detailed  by  the  master  of  the 
rolls,  there  was  nothing  existing  in  the  case,  but  the  actual  relation  of 
solicitor  and  client ;  and  that  alone,  though  enough  to  stimulate  inquiry, 
or  awaken  suspicion,  is  not  sufficient,  per  se,  to  invalidate  a  deed. 

The  case  of  solicitor  or  attorney  and  client,  docs  not  stand  upon  the 
eame  footing,  with  respect  to  dealing  with  each  other,  as  Trustee  and  his 
Cestui  que  Trust.  The  solicitor  is  under  no  positive  incapacity  to  pur- 
chase from  his  client.    A  trustee,  as  will  be  shown  elsewhere  more  fully,  is 

1  Casborne  v.  Barsham,  2  Beavan,  76.  p.  107,  where  undue  influence  is  said  to  be 
Means  ,r  ~cans,  3  Strobh.  Law  Appeals,    something  which  destroys  free  agency. 


172  Of  Fraud.  LCb.  8 

not  permitted,  from  motives  of  public  policy,  to  purchase  tne  estate  of 
his  beneficiary.1  With  respect  to  an  attoruey  or  solicitor,  the  onus  lies 
on  him,  when  he  makes  a  purchase  from  his  c/ient  in  the  matter  with 
respect  to  which  he  is  attorney  or  solicitor,  which  is  impeached,  to  prove 
that  the  transaction  was  fair.  It  was  said  on  one  occasion  by  Lord  Eldon, 
that  "if  the  attorney  will  mix  with  the  character  of  attorney  that  of  ven- 
dor, he  shall,  if  the  propriety  of  the  transaction  comes  in  question,  mani- 
fest that  he  has  given  his  client  all  that  reasonable  advice  against  himself, 
that  he  would  have  given  him  against  a  third  person.2  He  who  bargains 
in  a  matter  of  advantage,  with  a  person  placing  confidence  in  him,  is 
bound  to  show  that  a  reasonable  use  has  been  made  of  that  confidence  ; 
a  rule  applying  to  trustees,  attorneys,  or  any  one  else.3 

No  doubt  the  rule  does  not  apply,  except  the  party  was  attorney  in 
hac  re.4  In  one  case  it  was  said,  that  he  cannot  take  any  thing  from 
his  client,  for  his  own  benefit  pending  the  suit,  but  his  demand  ;  nor  at 
its  close,  nor  until  the  relation  and  influence  have  ceased.5 

The  influence  created  by  the  relation  between  attorney  and  client,  has 
been  watched  by  our  courts  with  as  much  jealousy,  as  by  the  English 
courts.  In  a  recent  case  before  Chancellor  "Walworth,6  the  principles 
above  stated  were  fully  approved  and  applied.  In  that  case,  the  attor- 
ney obtained  from  his  client  the  assignment  of  a  judgment,  recovered  by 
himself  as  attorney,  for  a  consideration  so  grossly  inadequate,  (about  one 
tenth  of  its  value,)  that  the  client  would  not  probably  have  made  the 
assignment,  if  he  had  been  fully  informed  of  the  facts,  which  his  attorney 
ought  to  have  ascertained  and  communicated  to  him.  The  assignment 
was  set  aside,  and  the  attorney  was  ordered  to  pay  to  his  client  t he- 
amount  collected  on  it,  deducting  the  sum  paid  by  him  to  his  client  as 
the  consideration  of  the  assignment.  In  this  case,  it  was  said  that  the 
relation  of  attorney  and  client  existing  between  the  parties,  rendered  it 
unnecessary  to  prove  actual  fraud.  The  difference  between  the  value  of 
the  judgment  and  the  sum  paid  for  the  assignment,  in  connection  with 
that  relationship,  made  it  a  case  of  constructive  fraud,  which  relieved  the 
client  from  the  burden  of  proving  that  the  attorney  intentionally  deceived 
iiim,  or  made  any  misrepresentations  whatever,  in  relation  to  the  value 
of  the  judgment,  or  the  probability  of  its  collection.     If  the  court  was  not 

1  Heme  v.  Meeres,  1  Vern.  4G5.     Ex  2  6  Yes.  277. 

parte  Reynolds,  5  Ves.  707.     Ayliff  v.  3  Id. 

Murray,  2  Atk.  59.     Green  v.  Winter,  1  4  Edwards  v.  Meyrik,  2  Hare,  60. 

J.  Ch.  R.  27.     Parkist  v.  Alexander,  id.  5  Wood  v.  Downes,  18  Ves.  127. 

394.      Schiefflin    v.   Stewart,    id.     620.  e  Howell  v.  Hanson,  11  Paige,  598 
Brown  v.  Packets,  4  id.  303, 


Ch.  3.]    Transactions  between   Attorney  and  Client.         IT? 

bound  to  set  aside  the  sale  as  a  matter  of  course,  upon  the  application  of 
the  client,  in  such  a  case,  the  whole  burden  of  establishing  the  fairness 
of  the  sale,  and  that  it  was  made  upon  full  and  adequate  consideration, 
was  at  least  cast  upon  the  attorney.  The  attorney,  it  was  said,  can  never 
sustain  a  purchase  of  this  kind,  without  showing  that  he  communicated 
with  his  clients  every  thing  which  was  necessary  to  enable  them  to  form 
a  correct  judgment  of  the  actual  value  of  the  subject  of  the  purchase, 
and  as  to  the  propriety  of  selling  at  the  price  offered.' 

In  a  still  later  case,*  the  chancellor  said,  the  safety  of  the  community 
requires  that  a  bond  and  mortgage  obtained  by  a  solicitor  from  his  client, 
upon  the  subject  matter  of  the  suit,  pending  the  litigation,  should  not  be 
permitted  to  stand  for  any  purpose  whatever.  This  was  going  further 
than  is  warranted  by  the  adjudged  cases  in  this  and  other  states,  and  in 
England,  and  must  be  understood  with  qualifications.  The  facts  are  not 
detailed  in  the  report  of  the  case  by  Mr.  Paige,  but  it  appears,  from 
another  part  of  the  opinion,  that  it  was  also  a  case  of  gross  fraud.  But 
in  the  report  of  the  same  case  by  Mr.  Denio,  on  the  appeal  to  the  court  of 
errors,3  we  learn  that  the  bond  and  mortgage  were  given  by  the  client  and 
his  wife,  upon  real  estate,  of  which  the  wife  was  seised  in  fee,  and  in 
which  the  client  had  only  a  contingent  life  estate  by  the  curtesy,  to  the 
solicitor  of  the  husband,  who  was  conducting  an  action  for  the  partition 
of  the  same  property ;  that  the  solicitor  was  insolvent ;  that  the  only 
consideration  for  the  bond  and  mortgage  was  the  individual  bond  of  the 
solicitor  for  the  same  amount,  payable  to  the  husband  ;  and  that  the  busi- 
ness capacity  of  the  husband  was  of  a  low  order.  It  was  thus  a  mixed 
case  of  fraud  and  undue  influence,  arising  from  the  relation  of  solicitor 
and  client.  And  Spencer,  senator,  who  delivered  the  leading  opinion  in 
the  court  of  errors,  said,  that  he  was  not  prepared  to  say  that  every  bond 
and  mortgage  taken  by  an  attorney  or  solicitor  from  his  client,  upon  the 
subject  matter  of  the  suit,  must  necessarily  be  void.  He  looked  upon 
the  transaction  with  no  favor,  and  with  a  disposition  to  scrutinize  it  with 
the  utmost  rigor.  And  he  approved  of  the  remarks  of  Lord  Eldon  in 
Gibson  v.  Joyes,  already  cited,4  that  if  the  solicitor  was  able  to  manifest 
that  he  had  given  his  client  ail  that  reasonable  advice  against  himself 
that  he  would  have  given  him  against  a  third  person,  perhaps  the  security 
might  be  held  valid.  The  whole  burden  of  proof  should  be  thrown  upon 
the  attorney  or  solicitor  ;  and  that  he  who  bargains  in  a  matter  of  advant- 


TTowell  v.  Kanson,  11  Paige,  508.  s  5  Denio,  610,  by  the  name  of  Evaas 

•  Ellis  v.  Minervie,  id.  407,  463.  v.  Ellis. 

4  6  Ves.  277,  278. 


174.  Of  Fraud.  [Ch.  3 

age  to  himself,  with  a  person  placing  confidence  in  him,  is  bound  to  show 
that  a  reasonable  use  has  been  made  of  the  confidence. 

Before  the  adoption  of  the  code  of  procedure  in  1848,  the  courts  of 
New- York  watched  with  extreme  jealousy  the  dealings  between  attorney 
and  client,  with  respect  to  the  matters  in  litigation.  Neither  the  attorney, 
solicitor  or  counsel  was  permitted  to  contract  with  his  client,  previous  to 
the  termination  of  the  suit,  for  a  part  of  the  demand  or  subject  matter  of 
the  litigation,  as  a  compensation  for  his  services.1  And  the  3ame  princi- 
ples seem  to  have  been  very  extensively  adopted  in  this  country.2  The 
ground  of  the  prohibition  was  in  part  the  relationship  of  solicitor  and 
client,  and  in  part  its  tendency  to  champerty.  But  whether  tending  to 
champerty  or  not,  any  agreement  is  void  as  against  public  polic}T,  which 
places  the  interest  of  the  solicitor  in  conflict  with  his  paramount  duty 
to  his  client.3 

The  law  will  not  imply  undue  influence,  from  the  mere  relationship  of 
attorney  and  client*  in  respect  of  transactions  not  in  litigation.  In  such 
cases,  to  induce  the  court  to  interfere,  there  must  be  something  more 
shown,  either  of  fraud  or  imposition ;  some  gross  disproportion  betweeen 
the  value  of  the  property,  and  the  consideration ;  some  appearance  of 
overbearing  influence  on  the  one  side,  and  tame  submission  on  the  other.4 

The  principle  we  have  been  considering  has  been  applied  to  agree- 
ments between  a  party  to  a  suit  before  a  single  magistrate,  before  whom 
attorneys  do  not  generally  appear,  and  an  individual  who  appears  as  the 
friend  and  confidential  adviser  of  the  party  in  such  suit.5 

So  far  as  the  New-York  cases  have  been  influenced  by  analogies  to 
the  statutes  to  prevent  champerty  and  maintenance,  they  may  be,  in 
some  respects,  modified  by  the  code  of  procedure.  By  the  303d  section 
of  that  act.  all  statutes  establishing  or  regulating  the  costs  or  fees  of 
attorneys,  solicitors  and  counsel  in  civil  actions,  and  all  existing  rules 
and  provisions  of  law,  restricting"  or  controlling  the  right  of  a  party 
to  agree  with  an  attorney,  solicitor  or  counsel,  for  his  compensation, 
are  repealed;  and  hereafter  the  measure  of  such  compensation  shall  be 

1  Nferritt  v.  Lambert,  10  Paige,  358.  s  Merritt  v.  Lambert,  10  Paige,  358; 

'Thurston  v.  Percival,    1   Pick.   415.  S.  C.  2  Denio,  607,  affirming  same. 

Livingston  v.  Cornell,  2  Mart.  Lou.  Rep.  4  Bibb  v.  Smith,  1  Dana,  5S2.     Wen- 

281.     Key  v.  Yattier,   1   Ham.  R.  132.  dell  v.  Van  Rensselaer,  1  J.  Ch.  350. 

Rust  v.  Larue,  4  Litt.  R.  411.     Caldwell  5  Buffalow  v.  Buffalow,  2  Dev.  &  Batt. 

v.  Shepherd's  Heirs,  6  Mon.  R.  389.     In  241.     1  Mad.  Ch.  94  to  97,   where  the 

re  Reakly,  5  Paige,  311.     Arden  v.  Pat-  older  English  cases  are  collected  aDd  re- 

terson,  5  J.  Ch.   R.   44.     Satterlee   v.  viewed. 
Frazer,  2  Sandf.  S.  C.  R.  141. 


Ch.  3.]     Transactions  between  Physician  and  Patient.         j  75 

left  to  the  agreement,  express  or  implied,  of  the  parties.  Under  the 
above  provisions  of  the  code,  the  practice  of  attorneys  and  counsel  to 
jiake  special  bargains  with  their  clients  has  become  necessary,  in  order 
to  insure  a  compensation  for  their  services,  the  taxable  costs  allowed, 
being  confessedly,  in  most  cases,  inadequate  for  that  purpose.1 

In  many  cases  of  undue  influence,  the  consent  of  the  party,  from  whom  an 
advantage  is  thus  obtained,  is  to  a  certain  extent  coerced.  He  is  not  left  to 
that  entire  freedom  of  action  essential  to  a  correct  judgment  of  his  affairs, 
and  he  is  easily  deluded  by  the  blind  confidence  which  he  reposes  in  one 
standing  to  him  in  a  confidential  relation.  The  principles  upon  which 
courts  of  equity  relieve  against  securities  taken  by  an  attorney  from  his 
client,  apply  to  all  cases  in  which  confidence  is  reposed  by  one  party  in 
the  other.  In  Dent  v.  Bennett,2  it  was  held  that  the  court  would  relieve 
against  an  agreement  taken  by  a  medical  adviser  from  an  aged  patient, 
by  which  the  former,  in  consideration  of  his  past  services,  was  to  be  paid 
25.000  pounds,  after  the  death  of  the  latter.  In  this  case  there  were  indeed 
other  elements  influencing  the  judgment,  besides  the  relationship  between 
the  parties.  The  agreement  was  void  at  law,  as  holding  out  an  induce- 
ment to  the  medical  adviser  to  accelerate  his  patient's  death  ;   and  there 


1  The  revised  statutes  of  Xew- York  for-  691,  §5.  By  section  6,  the  buying  and 
bid  attorneys,  counsellors  and  solicitors  selling  of  pretended  rights  and  title  to 
from  buying,  or  being  interested  in  buy-  lands,  Arc.  from  a  grantor  not  in  possession, 
irg,  any  bond,  bill,  promissory  note,  bill  arc  also  forbidden,  and  the  violation  of 
:hange,  book  debt,  or  other  thing  the  act  is  made  a  misdemeanor.  But  a 
in  action,  with  the  intent  and  for  the  person  not  in  possession  is  allowed  to 
bringing  any  suit  thereon.  2R.  mortgage  the  same,  and  is  also  allowed 
},  §  71.  The  7lM  section  forbids  the  to  convey  the  same  to  the  person  in  pos- 
V.inling,  by  any  attorney,  &c.  or  the  ad-  session.  Some  of  the  decisions  undei 
\  anting  any  money,  &c.  as  an  inducement  the  foregoing  statutes  are  the  following : 
to  the  placing  in  their  hands  for  collec-  Mann  v.  Fairchild,  U  Barb.  548.  Tuttle 
tion  of  any  note,  bond,  &c.  etc.,  and  the  v.  Jackson,  6  Wend.  213.  Hall  v.  Gird, 
next  section  makes  the  violation  of  the  7  Bill,  586.  Baldwin  v.  Latson,  2  Barb, 
act  a  misdemeanor.  The  taking  of  any  Ch.  R.  307.  I  am  not  aware  of  any  re- 
conveyance of  any  lands  or  tenements,  or  ported  case,  since  the  adoption  of  the 
of  any  interest  therein,  from  any  person  code,  in  relation  to  bargains  between  at 
not  being  in  possession  thereof,  while  torney  and  client.  How  far  tho  positions 
such  lands  or  tenements  shall  be  the  sub-  in  the  text  will  be  modified  by  the  code 
ject  of  controversy  by  suit,  in  any  court,  is,  at  present,  matter  of  conjecture, 
knowing  the  pendency  of  such  suit,  and  27  Simons,  531) ;  S.  C.  2  Mylne  & 
that  the  grantor  was  not  in  possession,  Craig,  269. 
&c,   is   made  a  misdemeanor.     2  R.  S. 


1.70  Of  Fraud.  [Ch.3 

was  an  apparently  gross  disproportion  between  the  value  of  the  services 
and  the  sum  agreed  to  be  given. 

The  relation  of  parent  and  child  is  one  of  mutual  confidence  ;  and  from 
the  natural  and  just  influence  which  the  former  has  over  the  latter,  the 
contracts  and  conveyances,  whereby  benefits  are  secured  by  children  to 
their  parents,  should  be  watched  with  jealousy.  Where  a  father  obtained 
an  absolute  conveyance  from  a  daughter,  in  order  to  answer  one  purpose1, 
and  afterwards  made  use  of  it  for  another,  Lord  Hardwicke  relieved  against 
it  under  the  head  of  fraud.  And  in  giving  his  opinion,  he  laid  stress  on  the 
fact  that  it  was  a  conveyance  obtained  by  a  father  from  his  child.1  The 
cases  do  not  go  the  length  of  declaring  a  contract  between  parent  find 
jhild,  per  se,  void,  by  reason  of  that  relation.  They  do  not  infer  undue 
influence  or  fraud,  in  a  conveyance,  because  the  grantor  is  a  son  and  the 
grantee  the  father.  They  do  not  go  the  length  of  declaring  contracts 
made  between  parties  standing  in  that  relation  void,  upon  principles  of 
public  policy.  In  the  cases  where  the  courts  have  interfered  in  the 
dealings  between  parent  and  child,  there  have  been  invariably  other 
ingredients,  showing  undue  influence,  operating  upon  the  hopes  or  the 
fears  of  the  child,  and  some  reasonable  grounds  to  presume  that  the  act 
was  not  perfectly  free  and  voluntary  on  the  part  of  the  child. 

The  supreme  court  of  the  United  States,  in  a  recent  case,  declined 
sanctioning  the  broad  principle,  that  the  deed  of  a  child  to  a  parent  is, 
prima  facie,  void.  The  learned  judge  who  delivered  the  prevailing 
opinion  said  :  "It  is  undoubtedly  the  duty  of  courts  carefully  to  watch 
and  examine  the  circumstances  attending  transactions  of  this  kind,  when 
brought  under  review  before  them,  to  discover  if  any  undue  influence  haa 
been  exercised  in  obtaining  the  conveyance.  But  to  consider  a  parent 
disqualified  to  take  a  voluntary  deed  from  his  child,  without  considera 
tion,  on  account  of  their  relationship,  is  assuming  a  principle  at  war  -with 
all  filial  as  well  as  parental  duty  and  affection  ;  and  acting  on  the  pre- 
sumption, that  a  parent,  instead  of  wishing  to  promote  the  interest  and 
welfare,  would  be  seeking  to  overreach  and  defraud  his  child.  Whereas 
the  presumption  ought  to  be,  in  the  absence  of  all  proof  tending  to  a  con- 
trary conclusion,  that  the  advancement  of  the  interest  of  the  child  was 
the  object  in  view;  and  to  presume  the  existence  of  circumstances  con- 
ducing to  that  result.  Such  presumption  harmonizes  with  the  moral 
obligations  of  a  parent  to  provide  for  his  child  ;  and  is  founded  on  the 
same  benign  principle  that  governs  cases  of  purchases  made  by  parents 

1  Young  v.  Pea-ley,  2  Atk.  254. 


Oh.  3.J        Transactions  between  Parent  and  Child.  i<( 

in  the  name  of  a  child.  The  prima  facie  presumption  is,  that  it  was 
intended  as  an  advancement  to  the  child,  and  so  not  following  within  the 
principle  of  a  resulting  trust.  The  natural  and  reasonable  presumption 
in  all  transactions  of  this  kind  is,  that  a  benefit  was  intended  the  child, 
because  in  the  discharge  of  a  moral  and  parental  duty.  And  the  interest 
of  the  child  is  abundantly  guarded  and  protected  by  keeping  a  watchful 
eye  over  the  transaction,  to  see  that  no  undue  influence  was  brought  to 
bear  upon  it."1 

The  existence  of  undue  influence  and  abused  confidence  may  exist  in 
many  cases,  when  a  child  obtains  from  an  aged  and  infirm  parent  a  con- 
vevance  of  his  estate,  and  when  the  presumption  that  it  was  intended  as 
an  advancement  is  repelled  by  all  the  surrounding  circumstances.  In 
such  cases  a  court  of  equity  has  not  hesitated  to  interpose.  A  conveyance 
obtained  by  children  from  a  father  will  not  be  sanctioned  by  the  court, 
xf  it  appears  to  have  been  caused  by  an  abuse  of  confidence  reposed  by 
him  in  his  children,  who,  for  the  purpose  of  procuring  it,  took  advantage 
of  his  age,  imbecility  and  partiality  for  them,  and  the  conveyance  was 
upon  an  inadequate  consideration.  Thus,  a  conveyance,  by  a  father  74 
years  of  age,  his  wife  being  nearly  70  years  of  age,  and  in  delicate  health, 
to  his  two  sons,  of  real  and  personal  estate  worth  more  than  nine  thou- 
sand dollars,  taking  from  his  sons  a  bond  and  mortgage  to  secure  h;s  and 
his  -wife's  maintenance,  and  an  annuity  of  fifty  dollars  during  their  lives, 
was  held  to  be  for  a  consideration  grossly  inadequate,  it  not  appearing  to 
be  intended  as  an  advancement.2 

In  the  case  just  referred  to,  it  was  stated  by  the  learned  judge  who 
delivered  the  opinion,  that  a  contract  obtained  from  one  party  who  was  in 
the  power  of  the  other,  cannot  be  sanctioned  if  confidence  has  been  abused, 
if  there  be  inadequacy  of  price,  or  the  inference  is  plain  that  advantage 
has  been  taken  of  age  and  imbecility,  and  the  partiality  of  a  parent  has 
been  artfully  made  use  of  to  strip  him  of  his  property,  and  reduce  him  to 
a  state  of  dependence  and  want.  And  the  general  principle  already 
stated  was  sanctioned,  that  he  who  bargains  in  matter  of  advantage,  with 
a  person  placing  confidence  in  him,  is  bound  to  show  that  a  reasonable 
use  has  been  made  of  that  confidence. 

In  the  foregoing  case  a  number  of  elements  combined  to  show  that  the 
conveyance  should  be  set  aside.  The  dissensions  in  the  family  had  led  to 
a  separation  of  the  wife  from  the  husband.  A  portion  of  the  children  ad- 
hered to  her,  and  another  portion,  the  grantees,  to  him.  The  latter  ob- 
tained  a   controlling   influence    over    the  father,  and  for  an  inadeqate 

1  Jenkins  v.  Pye  12  Pet.  R.  253,  25-4.  a  "Whelau  v.  Wlielan,  3  Cowen,  537. 

E'q.  Jru.  23 


178  Of  Fraud.  [Ch.  3 

consideration,  and  upon  unfounded  representations,  obtained  the  deed  in 
question.  Perhaps  neither  ground  alone  would  have  been  sufficient  to 
authorize  the  court  to  set  aside  the  conveyance.  But  in  the  case  where 
great  confidence  has  been  reposed,  and  an  ascendancy  has  been  obtained 
by  one  party  over  another,  if  a  court  of  equity  sees  that  any  acts  or 
tratagems,  or  any  undue  means,  or  the  least  speck  of  imposition,  or  the 
least  scintella  of  fraud  entered  into  the  bargain,  it  will  avoid  the  grant.1 
Of  a  character  similar  in  principle  to  the  foregoing,  was  a  recent  case 
in  the  supreme  court  of  New- York,  where  the  like  relief  was  granted.2 

But  a  more  stringent  rule  is  applied  in  the  case  of  what  are  called 
catching  bargains  of  young  heirs  ;  as  where  an  unconscionable  purchase  is 
made  from  a  young  heir,  in  his  father's  lifetime,  by  a  person  other  than 
one  standing  in  loco  parentis.  To  that  class  of  persons  a  court  of  equity 
seems  to  have  extended  a  degree  of  protection,  approaching  nearly  to 
an  incapacity  to  bind  themselves  by  any  contract.3  It  acts  upon  the 
principle,  that  these  persons  necessarily  contract  on  unequal  terms  ;  and 
it  grants  relief  upon  general  principles  of  mischief  to  the  public,  without 
requiring  particular  evidence  of  actual  imposition  upon  them,  as  they  are 
cases  of  general  concern.4  The  whole  duty  of  making  good  the  bargain 
from  an  expectant  heir,  is  upon  the  vendee.5  An  expectancy,  no  doubt, 
may  be  sold,  provided  it  is  fairly  sold ;  but  the  court,  in  favor  of  young 
heirs,  requires  the  vendee  to  show  it.  Prima  facie,  the  transaction  is 
invalid. 

The  real  object  which  the  rule  professes,  being  to  restrain  the  antici 
pation  of  expectancies,  which  must,  from  its  very  nature,  furnish  to  design- 
ing men  an  opportunity  to  practice  upon  the  inexperience  or  passions 
of  a  dissipated  man ;  its  operation  is  not  confined  to  heirs,  but  extends 
to  all  persons,  the  pressure  of  whose  wants  may  be  considered  as  obstruct- 
ing the  exercise  of  that  judgment  which  might  otherwise  regulate  their 
dealing.6 

Though  inadequacy  of  consideration  between  persons  standing  upon 
equal  footing  is,  in  courts  of  equity,  of  no  account,  unless  from  its  gross- 
ness  it  affords  evidence  of  fraud,  yet,  in  regard  to  expectant  heirs,  it 
becomes  a  ground  for  the  interposition  of  the  court.7     And  in  such  case 

1  "Whelan  v.  Whelan,  3  Oowen,  537.  4  Walmesley  v.  Booth,  2  Atk.  28.    Bur- 

1  Brice  v.  Brice,  5  Barb.  533.    Sears  v.  ney  v.  Pitt,  2  Vera.  14. 

Shafer,  1  Barb.  S.  0.  R.  408 ;  S.  C.  affirm-  6  Coles  v.  Trecothick,  9  Ves.  246.  Gow* 

e(i  on  appeal,  2  Seld.  268.  land  v.  De  Faria,  17  Ves.  25. 

8  Peucock  v.  Evans,  16  Ves.  514.  6  1  Fonbl.  Eq.  B.  1,  ch.  2,  §  12,  n>tek. 


7  Peacock  v.  Evaiu,  16  Ves.  517. 


On.  B.]  Expectant  Ht.tb.-s*  17B 

the  conveyance  is  set  aside  on  payment  of  principal,  interest  and  costs, 
the  defendant  being  considered  as  a  mortgagee.1  The  plaintiff  must  do 
equity  by  paying  what  was  really  lent.2 

The  tendency  of  the  doctrine  of  the  court,  in  these  cases,  to  render  all 
bargains  with  such  persons  very  insecure,  if  not  altogether  impracticable, 
seems  not  to  have  been  considered  as  operating  to  prevent  its  adoption 
and  establishment;  but,  on  the  contrary,  some  judges  have  avowed  that 
probable  consequence,  as  being  to  them  the  recommendation  of  it.3 

The  ground  on  which  the  doctrine  rests  being  that  the  expectant  heir 
is  defenseless,  and  under  the  pressure  of  necessity,  and  that  there  is  an 
implied  fraud  upon  the  ancestor,  who  is  ignorant  of  the  transaction,  it 
would  seem  that,  if  the  reason  of  the  rule  ceased,  the  rule  itself  should 
cease  also.  It  has  accordingly  been  held,  that  when  an  expectant  heir, 
under  pecuniary  pressure,  mortgages  his  reversionary  interest,  to  obtain 
an  advance  of  money  or  credit  for  a  purchase  of  goods,  and  the  party  in 
present  possession  of  the  property  so  mortgaged  stands  in  loco  parentis 
to  such  heir,  and  knows  and  approves  of  the  transaction,  the  heir  has  no 
equity  to  have  it  rescinded. 

The  remarks  of  Lord  Brougham,  in  a  case  before  him  in  the  English 
chancery,  throw  much  light  upon  the  subject.4  "  Two  propositions,"  says 
the  chancclleor,  "  I  take  to  be  incontcstible,  as  applicable  to  the  doctrines 
of  this  court  upon  the  subject  of  an  expectant  heir,  dealing  with  his 
expectancy,  and  as  governing  more  especially  the  present  question. 
First,  that  the  extraordinary  protection  given  in  the  general  case  must 
<v  withdrawn,  if  it  shall  appear  that  the  tranasction  was  known  to  the 
father,  or  other  person  standing  in  loco  parentis — the  person,  fur  exam- 
p'e,  from  whom  the  spes  successio?iis  was  entertained,  or  after  whom  the 
reversionary  interest  wras  to  become  vested  in  possession — even  although 
such  parent  or  other  person  took  no  active  part  in  the  negotiation,  pro- 
vided the  transaction  was  not  opposed  by  him,  and  so  carried  through  in 
spite  of  him.  Secondly,  that  if  the  heir  flies  off  from  the  transaction, 
and  becomes  opposed  to  him  with  whom  he  has  been  dealing,  and  repudi- 
ates the  whole  bargain,  he  must  not,  in  any  respect,  act  upon  it  so  as  to 
alter  the  situation  of  the  other  party,  or  his  property ;  at  least,  that  if  he 
does  so,  the  proof  lies  upon  him  of  showing  that  he  did  so  under  the 
continuing  pressure  of  the  same  distress  which  gave  rise  to  the  original 
dealing.     Still  more  fatal  to  his  claim  of  relief  will  it  be,  if  the  father,  oi 

1  Gowland  v.  De  Faria,  1Y  Yes.  23.  '  King  v.  ITamler,  2  Myl.  &  K.  456;  S. 

■  1  Fonb.  Eq.  B.  1,  ch.  2,  §  13.  C.  1  Cooper's  Sel.  Cas.  281. 

Peacock  v.  Evans,  1G  Ves.  ,515. 


180  Of  Fraud,  [Ch.  3. 

person  in  loco  parentis,  shall  be  found  to  have  concurred  m  this  adoption 
of  the  repudiated  contract.  Either  of  these  propositions  would  be  deci- 
sive of  the  present  question,  if  they  were  well  founded  in  law,  and  if  the 

facts  allow  of  their  application  to  it 

"The  whole  doctrine,  with  respect  to  an  expectant  heir,  assumes  that 
the  one  party  is  defenseless,  and  exposed  unpi-otected  to  the  demands  of 
the  other,  under  the  pressure  of  necessity.  It  would  be  monstrous  to 
treat  the  contracts  of  a  person  of  mature  age  as  the  acts  of  an  infant, 
when  his  parent  was  aware  of  his  proceedings,  and  did  nothing  to  pre- 
vent them.  The  parent  might  thus  lie  by  and  suffer  his  son  to  obtain  the 
assistance  which  he  ought  himself  to  have  rendered ;  and  then  only 
stand  forward  to  aid  him  in  rescinding  engagements  which  he  had  allow- 
ed him  to  make  and  to  profit  by.  If  all  the  cases  be  examined,  from 
the  time  of  Lord  Nottingham  downwards,  no  trace  will  be  found,  in  any 
one  of  them,  of  the  father's  or  other  ancestor's  privity  ;  on  the  contrary 
whenever  the  subject  is  touched  upon,  his  ignorance  is  assumed,  as  part 
of  the  case  ;  and  its  being  so  seldom  mentioned  either  way.  shows  clearly 
that  the  privity  of  the  father,  or  ancestor,  never  was  contemplated.  It  i*, 
however,  several  times  adverted  to  in  a  manner  demonstrative  of  the 
principle.  In  Cole  v.  Gibbon,  (3  P.  Wms.  290,)  the  ground  of  this 
whole  equity  is  said  to  be  the  policy  of  the  law  to  prevent  the  heir  bein^ 
seduced  from  a  dependence  upon  the  ancestor,  who  probably  would  hava 
relieved  him.  In  the  same  spirit,  Lord  Cowper,  in  Twistleton  v.  Griffith, 
(1  P.  Win,  310,)  had  before  stated,  as  one  effect  of  the  law,  its  tendency, 
by  cutting  off  relief  at  the  hands  of  strangers,  to  make  the  heir  disclose 
his  difficulties  at  home.  So  in  the  Earl  of  Chesterfield  v.  Janssen,  (1  Atk. 
339,)  Mr.  Justice  Burnett  treats  such  transactions  as  things  done  behind 
the  father's  back,  and,  as  it  were,  a  fraud  upon  him  ;  a  view  of  the  sub- 
ject also  adopted  by  Lord  Hardwicke,  in  the  same  case,  (1  Id.  353, 354.) 
It  is  as  well  to  mention  these  cases,  because  there  has  been  no  decision 
upon  the  point ;  but  it  is  quite  a  clear  one,  and  only  new  because  the 
facts  never  afforded  a  case  for  decision,  the  proposition  apparently  never 
having  been  questioned.1" 

On  the  same  principle,  a  post  obit  bond,  given  by  an  expectant  heir, 
has  been  relieved  against.  A  post  obit  bond  is  an  agreement,  on  the  re- 
ceipt of  a  sum  of  money  by  the  obligor,  to  pay  a  larger  sum,  exceeding 
the  legal  rate  of  interest,  on  the  death  of  the  person  from  whom  he  has 
some  expectation,  if  the  obligor  be  then  living.  This  contract  is  not  con- 
King  v.  Hamlet,  2  Myl.  &  K.  456;  S.  0.  1  Cooper's  Sel.  Cas.  281. 


Oh  3.]  Post  Obit  Bonus.  181 

gidered  as  a  nullity  ;  but  it  may  be  made  on  reasonable  terms,  in  which 
the  stipulated  payment  is  not  more  than  a  just  indemnity  for  the  hazard. 
But  whenever  an  advantage  is  taken  of  the  obligor  to  induce  him  to 
make  the  contract,  he  is  relieved  as  against  an  unconscionable  bargain, 
on  payment  of  the  principal  and  interest.1 

These  bonds  do  not  conflict  with  the  statute  against  usury  ;2  nor  are 
they  a  fraud  upon  the  obligor.  They  operate  as  a  fraud  upon  the  ances- 
tor, disappointing  his  intentions ;  they  are  against  public  policy ;  for 
they  are  productive  of  prodigality  on  the  one  hand,  and  beget  extortion 
on  the  other ;  want  and  avarice  always  generating  one  another.3 

The  general  policy  of  the  law  is,  to  require  the  party  who  deals  with 
expectant  heirs  and  reversioners  to  prove  that  he  paid  a  fair  price,  and, 
otherwise,  to  undo  the  bargain  and  compel  a  reconveyance.  These  same 
principles  apply  to  post  obit  bonds.  The  burden  of  showing  the  fairness 
of  the  transaction,  is  cast  upon  the  party  who  seeks  to  enforce  them  ; 
and  in  the  absence  of  such  proof  the  security  will  be  relieved  against. 
But  yet,  as  it  is  not  absolutely  void,  but  voidable  merely,  the  court  does 
not  relieve  except  upon  the  terms  of  doing  equity.4 

It  has,  however,  been  decided  that  a  sale  of  a  reversion,  at  public  auc- 
tion, does  not  fall  within  the  rule,  and  that  the  purchaser  was  not  bound 
to  show,  in  the  first  instance,  the  fairness  of  the  sale.  There  being  no 
treaty  between  vendor  and  purchaser  in  such  case,  there  can  be  no  op- 
portunity for  fraud,  or  imposition,  on  the  part  of  the  purchaser.5  The 
sale  by  auction,  it  was  said,  was  evidence  of  the  market  price,  and  the 
vendor  is,  in  such  case,  in  no  sense  in  the  power  of  the  purchaser.  But 
the  sa**  of  post  obit  bonds  at  auction,  when  they  were  put  up  for  sale 
withouv  reserve,  will  be  relieved  against.  The  selling  such  bonds  with- 
out reserve  by  a  young  man,  desirous  of  raising  a  large  sum  upon  them, 
pa}'able  at  the  death  of  his  father,  was  notice  to  all  that  the  vendor  was 
a  young  man  in  distress ;  that  he  was  so  much  pressed  for  money,  that 
he  undertook,  with  those  who  thought  fit  to  be  bidders,  that  he  would 
not  have  recourse  to  those  precautions  by  which  every  provident  seller, 
at  an  auction,  protects  himself  against  an  inadequate  price  ;  and  it  was 
thought  that  such  vendor  was,  in  some  sense,  in  the  power  of  those  deal- 
ing with  him,  and  the  sale  by  auction  did  not,  under  the  circumstances, 
afford  fair  evidence  of  the  market  price.6 

If  such  bonds  were  absolutely  void  at  law.  they  could  not  be  rendered 

'  Boynton  v.  Hubbard,  7  Moss.  119.  4  1  Fonb.  Eq.  B.  1,  ch.  2,  §  13. 

1  Wharton  v.  May,  5  Yes.  27.     Earl  of  6  Shelly  v.  Nash,  8  Mad.  Ch.  R.  23(5. 

Chesterfield  v.  Janssen,  1  Atk.  351.  •  Fox  v.  Wright,  G  Mad.  Ch.  11.  111. 
•Id. 


182  Of  Fratjix  [CTi.  3 

valid  by  any  new  agreement.  But  being  voidable  merely,  the  party, 
after  the  contemplated  event  has  happened,  and  the  pressure  of  necessity 
has  been  removed,  may  confirm  the  precedent  contract.1  A  deed  found- 
ed in  actual  and  positive  fraud,  as  being  made  under  the  influence  of 
corrupt  motives,  and  with  an  intention  to  cheat  creditors,  may  be  consid- 
ered void,  ab  initio,  and  never  to  have  had  any  lawful  existence.  The 
grantee  in  the  deed  may  be  considered  as  partieeps  criminis,  and  is  not 
permitted  to  deduce  any  right  from  an  act  founded  in  actual  fraud. 
But  this  rule  is  not  applied  to  contracts  which  are  only  considered  fraud- 
ulent by  construction  of  law,  as  being  against  the  policy  or  provisions 
of  particular  statutes.2  Such  contracts  can  be  affirmed  by  the  parties, 
unless  the  statute  declares  them  to  be  void.  A  deed  fraudulent  and  void 
as  against  others,  may'good  between  the  parties  to  it.3 

The  position  that  such  bonds  can,  under  any  circumstances,  be  con- 
firmed, has  been  doubted,  on  the  authority  of  some  cases  in  New-York 
and  Virginia.  But,  in  those  cases,  the  contract  sought  to  be  confirmed 
was  absolutely  void  between  the  parties,  and  not  merely  voidable.  It  was 
void  not  merely  as  against  public  policy,  but  declared  so  by  statute.4 

The  relationship  of  guardian  and  ward  gives  rise  to  the  application  of 
principles  similar  to  those  we  have  been  considering.  As  infants  are 
peculiarly  entitled  to  the  favor  of  the  court,  their  dealings  with  their 
guardian  should  be  watched  with  jealousy.  In  New- York,  Chancellor 
Walworth  said,  in  one  case,5  that  it  was  not  the  practice  of  the  court  to 
discharge  the  guardian  absolutely,  and  to  order  his  bond  to  be  given  up 
immediately  upon  the  infant's  arriving  of  age,  although  he  had  settled 
with  the  guardian.  That  the  ward,  notwithstanding  such  settlement,  was 
entitled  to  a  reasonable  time,  after  he  became  of  age,  to  investigate  the 
accounts  of  the  guardian,  and  to  surcharge  and  falsify  the  same,  if,  upon 
such  investigation,  he  found  any  thing  wrong.  That  by  the  practice  of 
the  court  of  chancery,  he  was  usually  allowed  one  year  for  that  purpose, 
after  he  became  of  age,  before  the  guardian's  bond  would  be  canceled, 
and  the  guardian  absolutely  discharged  from  his  trust.  That  when  the 
application  to  the  court  was  made  after  the  expiration  of  the  year,  the 

1  Earl  of  Chesterfield  v.  Janssen,  1  Atk.  4  Iloomes  v.  Smock,  1  "Wash.  Eep.  392. 

354.  lFonb.Eq.B.  1,  ch.  2,  §  13,  note  r.  Payne  v.  Eden,  3  Cai.  217.     Yeoman  v. 

'Per  Thompson,  Ch.  J.  in  Murray  v.  Chatterton,  9  J.  R.  297.    "Wiggins  v.  Bush, 

Riggs,  15  J.  R.  586.     Sands  v.  Codwise,  12  id.  309.     1  Fonb.  Eq.  B.  1,  ch.  2,  §  14 

4  id.  598,  599,  per  Kent,  Ch.  J.     Sterry  v.  No.  11. 

Arden,  1  J.  Ch.  R.  271.  6  In  matter  of  Home,  7  Paige,  46. 

'  Jackson  v.  Caldwell,  1  Cowen,  622. 


fjh.  8.1  Between  Guardian  and  Ward.  183 

bond  would  be  delivered  up  and  canceled  immediately,  upon  the  produc- 
tion of  the  receipt  or  discharge  of  the  ward,  duly  proved  or  acknowledged 
But  if  the  application  was  made  within  the  year,  the  order  would  only 
direct  the  guardian  to  be  discharged,  and  that  the  bond  be  delivered  up 
and  canceled  at  the  expiration  of  the  year;  unless  the  infant,  before  that 
time,  obtained  an  order  to  the  contrary,  or  filed  with  the  officer  with 
whom  the  bond  was  deposited  a  caveat,  or  notice  not  to  deliver  up,  or 
cancel  the  bond  without  the  further  order  of  the  court.  These  regula- 
tions are  obviously  dictated  by  an  anxious  regard  to  the  rights  and  inter- 
ests of  the  ward. 

In  an  earlier  case,  before  Chancellor  Kent,1  the  release  given  by  the 
ward  six  months  after  arriving  at  age,  which  release  was  fully  and  fairly 
made,  and  without  any  fraud,  misrepresentation  or  undue  means  to  obtain 
it,  was  held  to  be  valid.  But  the  case  also  shows  the  protecting  agency 
of  the  court  over  the  rights  of  the  ward.  Three  guardians  had  been 
appointed  by  the  surrogate  of  New-York  for  the  infant,  one  of  whom  died 
soon  after,  and  the  other  two  acted.  The  ward,  six  months  after  arriving 
at  age  as  before  stated,  released  one  of  the  said  guardians,  and  in  the 
same  instrument  reserved  her  claims  against  the  other  one,  who  had  been 
the  acting  guardian,  and  against  wdiom  her  accounts  were  unsettled.  On 
a  bill  filed  for  an  account  against  the  guardian  not  intended  to  be  dis- 
charged, the  release  was  plead  in  bar ;  but  the  court  held,  that  though 
at  law  the  release  of  one  of  two  or  more  obligors  to  a  joint  and  several 
bond  be  a  release  of  all,  yet,  in  equity,  the  release  should  be  construed 
according  to  the  intent  of  the  parties.  It  was  therefore  held  to  be  opera- 
tive only  in  favor  of  the  guardian  intended  to  be  released,  and  his  surety, 
leaving  the  bond  in  full  force  against  the  remaining  guardian  and  his 
surety. 

Lord  Eldon,  in  one  case,  said,  that  a  guardian  cannot  take  any  thing 
from  his  ward  pending  the  guardianship,  or  at  the  close  of  it,  or  at  any 
period,  until  his  influence  has  ceased  to  exist.2  In  this  case  he  refers, 
with  approbation,  to  Hylton  v.  Ilylton,  (2  Ves.  547,)  where  Lord  Ilard- 
wicke  stated  the  general  principles  on  the  subject,  and  said:  '•"Where  a 
man  acts  as  guardian,  or  trustee,  in  nature  of  a  guardian,  for  an  infant, 
the  court  is  extremely  watchful  to  prevent  that  person  taking  any  ad- 
vantage immediately  upon  his  ward  coming  of  age,  and  at  the  time  of 
settling  accounts  or  delivering  up  the  trust ;  because  an  undue  advantage 
may  be  taken.  It  would  give  an  opportunity,  either  by  flattery  or  force, 
by  good  usage  unfairly  meant,  oi  by  bad  usage  imposed,  to  take  such  an 

1  Kirby  v  Taylor,  G  J.  Ch.  It.  242.  '  Wood  v.  Downes,  18  Yes.  126. 


184  Of  Fraud.  [Ch.  8 

advantage ;  and,  therefore,  the  principles  of  the  court  is  of  the  same 
nature  with  relief  in  this  court,  on  the  head  of  public  utility  ;  as  in 
Donds  obtained  from  young  heirs  ;  and  rewards  given  to  an  attorney, 
pending  a  cause,  and  marriage  brokage  bonds.  All  depends  upon  public 
utility  ;  and,  therefore,  the  court  will  not  suffer  it,  though  perhaps,  in  a 
particular  instance,  there  may  not  be  an  actual  unfairness."  And  he 
further  added :  "  The  rule  of  the  court  as  to  guardians  is  extremely 
strict,  and,  in  some  cases,  does  infer  some  hardship,  as  where  there  has 
been  a  great  deal  of  trouble,  and  he  has  acted  fairly  and  honestly,  and 
yet  he  shall  have  no  allowance."1 

The  rule  of  the  common  law  which  withholds  from  trustees,  guardians, 
&c,  a  compensation  for  their  "  care  and  pains,"  in  executing  the  trust, 
and  merely  allows  them  their  "  costs,  charges  and  all  just  allowances," 
was  formerly  the  rule  of  this  state.2  Where  a  trustee  had  fairly 
expended  money  by  reasonably  taking  opinions,  and  procuring  directions 
necessary  to  the  due  execution  of  the  trust,  he  was  held  to  be  entitled  to 
such  charges,  under  the  head  of  just  allowances.3  Lord  Talbot  declared 
the  reason  of  the  rule  for  refusing  an  allowance  to  a  trustee,  for  care  and 
trouble,  viz.  that  under  that  pretext,  the  trust  estate  might  be  loaded 
and  rendered  of  little  value ;  and  also  because  of  the  great  difficulty 
there  might  be  in  settling  and  adjusting  the  quantum  of  such  allowance, 
as  one  man's  time  might  be  more  valuable  than  that  of  another,  and  that 
the  rule  was  no  hardship  upon  the  trustee,  since  the  acceptance  of  the 
trust  was  of  his  own  choice.4  And  Lord  Hardwicke,  on  one  occasion,5 
said  that  the  court,  in  general,  looked  upon  trusts  as  honorary,  and  a 
burden  upon  the  honor  and  conscience  of  the  person  entrusted,  and  not 
undertaken  upon  mercenary  views  ;  and  he  thought  there  was  a  strong 
reason,  too,  against  allowing  any  thing  beyond  the  terms  of  the  trust, 
because  it  gives  an  undue  advantage  to  a  trustee  to  distress  a  cestui  qui 
trust,  and  therefore  the  court  always  held  a  strict  hand  upon  trustees  in 
this  particular.  At  the  same  time  he  said,  that  if  a  trustee  comes  in  a 
fair  and  open  manner,  and  tells  the  cestui  qui  trust  that  he  will  not  act 
in  such  a  troublesome  and  burdensome  office,  unless  the  cestui  qui  trust 
will  give  him  a  further  compensation,  over  and  above  the  terms  of  the 
trust,  and  it  is  contracted  for  between  them,  he  would  not  say  that  the 
court  would  set  it  aside,  though  there  is  no  instance  where  they  have 

1  Hylten  v.  Hylten,  2  Ves.  548,  549.  s  Feara  v.  Young,  10  Ves.  1S4. 

Hamilton  v.  Mohun,  1  P.  "Wms.  120.  *  Robinson  v.  Pitt,  3  P.  Wms.  249. 

*  Green  v.  Winter,  1  J.  Ch.  R.  27;  S.  6  Ayliffv.  Murray,  2  Atk.  60. 
P.,  Maning  v,  Maning,  id.  527. 


(  h.  3.1  Gratuities  to  Guardians.  18- 

©-iMfirm^.l  such  bargain.  The  foregoing  principles  were  all  approved  hy 
Cb.%nceh>r  Kent  in  an  early  case,1  and  he  evidently  thought  it  was  com- 
ponent for  the  trustee  to  stipulate  in  advance,  with  the  cestui  qui  trust, 
for  a  comt  ensation. 

The  strictness  and  severity  of  the  common  law  rule  in  this  respect, 
led  tho  leg  slature  in  1817  to  relax  it,  so  far  as  to  make  it  lawful  for 
the  cbcnce?  '.or,  in  the  settlement  of  the  accounts  of  guardians,  executors 
and  administrators,  on  petition  or  otherwise,  to  make  a  reasonable  allow- 
ance to  thee  for  their  services  as  guardians,  &c,  over  and  above  their 
expenses  ;  asd  when  the  rate  of  such  allowance  should  have  been  settled 
by  the  chancellor,  it  should  be  conformed  to  in  all  cases  of  the  settlement 
of  such  ac- '-omits. - 

At  coram  *n  law  the  court  watched  with  great  jealousy  the  dealings 
between  the  guardian  and  ward,  on  the  termination  of  that  relationship. 
This  did  not  arise  from  the  supposed  immorality  of  a  gratuity  from  the 
ward  to  a  faithful  guardian.  Such  gratuity  might  spring  from  the  gen- 
erous impulse  of  a  grateful  heart,  creditable  alike  to  the  giver  and  re- 
ceiver. But  the  mind  of  the  ward  might  be  misled  by  undue  kindness, 
or  forced  by  oppression  to  make  the  gift.  Whether  it  was  granted  under 
either  of  thes>i  influences,  or  was  an  act  of  rational  consideration,  could 
never  be  fully  known  to  the  court.  To  allow  such  gifts  to  stand,  would 
ii  crease  the  di£j>ulty  of  getting  property  from  the  hands  of  the  guardian. 


1  Greeu  v.  Winter,  1  J.  Ch.  R.  38,  39.  Benson,  Hopkins,  28,  Chancellor  Sand- 

2  40th  Sess.  ch.  251,  L.  of  1817,  p.  292.  ford  reviewed  the  former  practice,  and 
Ii,  pursuance  of  this  law,  Chancellor  vindicated  the  policy  of  a  fixed  and  rea- 
Kent,  on  the  lGth  Octoher,  1817,  made  sonable  rate  of  compensation.  Without 
an  order,  fixing  the  compensation  to  guar-  referring  to  a  single  reported  case,  the 
dians,  executors  and  administrators,  in  chancellor  gave  an  elaborate  review  of  all 
the  settlement  of  their  accounts,  at  five  the  adjudged  cases  in  England  on  this 
per  cent  on  all  sums  not  exceeding  one  subject.  Chancellor  Kent,  in  Ex  parte 
thousand  dollars,  for  receiving  and  pay-  Roberts,  3  J.  Ch.  R.  43,  made  the  like  al- 
ing  out  the  same;  two  and  a  half  per  lowance  to  the  committee  of  the  estate 
cent  on  any  excess  between  one  and  five  of  lunatics,  as  the  law  had  authorized  to 
thousand  dollars,  and  one  per  cent  for  all  be  made  to  executors,  &c.  And  in  Meach- 
ftbove  one  thousand  dollars.  3  J.  Ch.  R.  am  v.  Sternes,  .9  Paige,  401,  Chancellor 
630,  G31.  On  the  revision  of  the  laws  in  Walworth  decided  that  other  trustees, 
1830,  the  substance  of  the  order  of  Chan-  when  no  provision  for  a  compensation 
cellor  Kent  was  enacted  and  made  part  was  made  in  the  instrument  under  which 
of  the  statute  relative  to  executors,  ad-  they  were  appointed,  fell  within  the 
ministrators  and  guardian--.     2  R.  S.  98,  equity  of  the  same  rule. 

|  58.     Id.  15:?,  §  22.     In  McWlmrier  v. 

Eu.  J  fit.  24 


/ 


186  Of  Fraud.  LOh.  S 

Under  the  rule,  as  it  was  settled  by  the  courts,  there  was  no  inducemen 
to  withhold  a  settlement,  in  order  to  extort  a  gratuity  ' 

The  provisions  of  the  New-York  statute  have  removed  some  of  the 
temptations  to  abuses  which  before  existed.  A  reasonable  compensation 
for  services,  at  a  fixed  rate,  leaves  no  apology  for  seeking  a  gratuity. 

Upon  the  same  principles  we  have  been  considering,  it  is  a  rule  ot 
equity,  that  a  trustee  shall  gain  no  benefit  by  any  act  done  by  him  as 
trustee,  but  such  benefit  shall  accrue  to  his  cestui  que  trust  or  benefi- 
ciary.2 The  doctrine  of  trusts  will  be  treated  under  its  appropriate  head. 
At  present  it  is  sufficient  merely  to  say,  that  a  trust,  in  its  simplest  elf* 
ments,  is  a  confidence  reposed  in  one  person,  who  is  termed  the  trustee, 
for  the  benefit  of  another,  who  is  called  the  cestui  que  trust ;  and  it  is 
a  confidence  respecting  property,  which  is  thus  held  by  the  former,  for 
the  benefit  of  the  latter.  Out  of  this  confidence  arise  two  estates  in 
the  property  which  is  the  subject  of  it ;  a  legal  estate  in  the  trustee. 
which  consists  in  obligation,  and  an  equitable  estate  in  the  cestui  que 
trust,  which  consists  in  right,  and  beneficial  enjoyment.  This  is  a  suffi- 
cient definition  of  the  terms  for  the  present  purpose,  while  we  are  merely 
considering  the  manner  in  which  the  court  treats  a  purchase  of  the  trust 
property  by  the  trustee.3 

The  rule  is  well  settled,  that  if  a  trustee,  acting  for  others,  sells  an 
estate  and  becomes  himself  interested  in  the  purchase,  the  cestui  que 
trust  is  entitled  to  come  into  equity,  as  of  course,  and  set  aside  that  pur- 
chase, and  have  the  property  re-exposed  to  sale.4  The  sale  in  such  case 
is  not  void  at  law.  and  the  legal  estate  passes  to  the  purchaser ;  but  he 
takes  it  subject  to  its  being  set  aside  in  equity  on  the  application  of  the 
beneficiary,  if  made  within  reasonable  time.  The  beneficiary  thus  has 
his  election  in  all  cases,  either  to  acquiesce  in  the  sale,  and  thus  affirm 
it,  or  have  it  set  aside  and  a  resale  ordered.5     And  it  makes  no  differ- 

1  Hatch  v.  Hatch,  9  Ves.  297.  1  R.  S.  727-731.    But  the  plain  English 

2  Holt  v.  Holt,  1  Ch.  Cas.  191.  is  used  as  above.     (Id.  §60.)    If  the  word 
*  The  definition  above  given  is  from  Bur-    "  beneficiary"  could  be  substituted  for  the 

rell's  Law  Diet.  tit.  Trust.     Judge  Story  barbarous  phrase,  cestui  que  trust,  or  for 

proposes  to  substitute  for  the  term  cestui  its  definition,  in  nine  words,   as  given 

que  trust,  the  English  word  beneficiary.    I  above  from  the  60th  section,  it  would  be 

see  no  objection  to  the  change,  provided  an  improvement. 

we  understand  by  the  latter  term,  "  the        4  Davoe  v.  Fanning,  2  J.  Ch.  R.  257. 
person  for  whose  benefit  the  trust  is  ere-        6  Id.  and  Jackson  v.  Walsh,  14  J.  R. 

ated."     It  is  worthy  of  observation,  that  407.     Bergen  v.  Bennett,  1  Caines1  Cas. 

the  words  cestui  que  trust  are  not  used  in  Er.  1. 
in  the  statute  concerning  uses  and  trusts. 


Ch.  3.J  Trustee   ant;   Ces'iui  que  Trust.  187 

enee  in  the  application  of  the  rule,  that  the  sale  was  at  public  auction 
bona  fide  and  for  a  fair  price.1 

The  reason  why  a  trustee  cannot  in  general  purchase  the  trust  prop- 
erty, either  from  the  trustee  or  at  public  sale,  is,  that  his  interest  inter- 
feres with  his  duty.  Emptor  emit  quam  minima  potest :  venditor 
vendit  quam  maximo  potest.2  The  policy  of  the  rule  is  to  shut  the 
door  against  temptation.  It  thus  operates  as  a  preventive  of  frauds. 
Nor  is  it  necessary,  in  order  to  invalidate  such  purchases,  to  show  that 
the  trustee  has  made  any  advantage  in  the  article  purchased.  The  rca 
son  is,  that  it  would  not  be  safe,  with  reference  to  the  administration  of 
justice  in  the  general  affairs  of  trusts,  that  a  trustee  should  be  permitted 
to  purchase ;  for  human  infirmity  will,  in  very  few  instances,  permit  a 
man  to  exert  against  himself  that  providence,  which  a  vendor  ought  to 
exert,  in  order  to  sell  to  the  best  advantage ;  and  which  a  purchaser  is 
at  liberty  to  exert  for  himself,  in  order  to  puchase  at  the  lowest  price.3 

A  trustee  may,  indeed,  buy  from  the  beneficiary,  provided  there  is  a 
distinct  and  clear  contract,  ascertained  to  be  such,  after  a  jealous  and 
scrupulous  examination  of  all  the  circumstances,  that  the  beneficiary 
intended  the  trustee  should  buy  ;  and  there  is  no  fraud,  no  concealment, 
no  advantage  taken  by  the  trustee,  of  information  acquired  by  him  in 
the  character  of  trustee.4 

If  it  be  for  the  interest  of  the  beneficiary  that  the  trustee  should 
become  the  purchaser,  and  the  former  is  an  infant,  the  court  can,  on  a 
proper  application,  allow  the  trustee  to  become  the  purchaser,  upon  offer- 
ing to  give  more  than  any  other  person.6'  In  that  way,  the  court  divests 
him  of  the  character  of  trustee,  and  prevents  all  the  consequences  of  his 
acting  both  for  himself  and  for  the  cestui  que  trust.6  If  the  trustee  has 
a  personal  interest  in  the  sale,  which  may  be  sacrificed  if  he  is  not  per- 
mitted to  bid,  the  court  will  appoint  a  master,  or  another  trustee  in  his 
place,  to  make  the  sale.7  But,  even  in  those  cases,  the  court  must  be 
satisfied  the  interest  of  the  cestui  que  trust  will  not  suffer  in  consequence 
of  such  permission.  If  the  trustee,  in  virtue  of  his  trust,  possesses  supe- 
rior advantages  of  information  as  to  the  situation  and  value  of  the  property. 

1  Ilentlricks  v.  Robertson,  2  J.  Ch.  C.  *  Ex  parte  Bennett,  lOVes.  394.    Coles 

811.  v.  Trecothiok,  9  Vesey,  246.    Stuart  v. 

5  Davoe  v.  Fanning,  2  J.  Ch.  R.  256.  Kissam,  2  Barb.  S.  C.  R.  493. 

Fox  v.  MoKreth,  White's  Leading  Equity  B  Campbell  v.  Walker,  5  Ves.  681,  6S2. 

Oas.  72,  and  notes.     49  vol.  Law  Lib.  105,  e  Id.  and  Davoe  v.  Fanning,  2  J.  Cb.  R. 

144,  where  the  cases  are  collected  and  261. 

reviewed.  7  De  Caters  v.  Le   Ray  Cbaumont,  3 

•  Ex  parte  Bennoat.  10  Yes.  394.  Paige,  178. 


/* 


1S8  Of  Fraud.  fCh.  8. 

bo  that  he  will  not  come  to  the  sale  on  terms  of  equality  with  other  bid- 
ders, the  court  will  not  put  him  in  a  situation  which  may  make  it  for  his 
interest  to  keep  that  information  to  himself.1 

On  the  principle  that  a  trustee  is  not  permitted  to  derive  any  benefit 

om  his  position  at  the  expense  of  the  cestui  que  trust,  a  trustee  of  a 
junior  mortgage  cannot  buy  in  the  premises  for  his  own  benefit,  on  the 
foreclosure  of  a  prior  mortgage,  to  the  prejudice  of  the  subsequent  mcrt- 
>  gage  which  he  holds  in  trust  for  others.  His  duty  in  such  case  is  in 
conflict  with  his  interest.  In  cases  of  this  kind,  says  Chancellor  Wal- 
worth, the  court  does  not  suffer  itself  to  be  drawn  aside  from  the  appli- 
cation of  the  equitable  rule,  by  any  attempt  on  the  part  of  the  purchaser, 
to  establish  the  fairness  of  the  purchase.  The  rule  is  founded  on  the 
danger  of  imposition,  and  the  presumption  of  the  existence  of  fraud  which 
is  inaccessible  to  the  eye  of  the  court.2 

On  the  same  priciple,  a  trustee  who  buys  in  an  outstanding  incum- 
brance against  the  trust  estate,  is  only  entitled  to  hold  such  incumbrance 
as  a  security  for  the  amount  actually  paid  by  him  therefor,  with  interest.3 

As  the  trustee  cannot  lawfully  become  a  purchaser  of  the  trust  prop- 
erty under  a  prior  incumbrance  for  his  own  benefit,  and  to  the  prejudice 
of  the  beneficiaries,  without  their  consent,  so,  if  he  does  so  purchase,  at 
a  price  below  the  real  value  of  the  property,  he  "will  be  treated  as  making 
the  purchase  for  the  use  and  benefit  of  his  cestui  que  trust.4 

Trustees  cannot  deal  in  their  owTn  behalf,  with  the  funds  intrusted  to 
their  charge  for  the  benefit  of  another.  Accordingly,  where  trustees  and 
executors  invested  a  legacy  in  bank  stock,  which  was  in  whole  or  in  part 
the  individual  property  of  one  of  the  trustees,  and  a  loss  was  sustained 
in  consequence  of  a  depression  of  the  stock,  they  were  held  accountable 
for  the  loss.5 

The  rules  we  have  been  considering  are  firmly  established  in  the 
English6  and   American  jurisprudence.7     In  addition  to  the  cases  al- 

1  De  Caters  v.  La  Chanmont,  3  Paige,  '  Mills  v.  Goodsell,  5  Conn.  475.  Green 
180.  v.  Winter,  1  J.  Ch.  R.  27.     Parkhist  v. 

2  Van  Epps  v.  Van  Epps,  9  Paige,  241,  Alexander,  id.  394.  Holdredge  v.  Gilles- 
242.  pie,  2  J.  Ch.  E.  30.     Hart  v.  Ten  Eyck, 

3  Quaekenbush  v.  Leonard.  9  Paige,  4  id.  104.  Vanhorne  v.  Fonda,  5  id.  409. 
834.  Evertson  v.  Tappan,  id.  514.     Michoud 

4  Slade  v.  Van  Vechten,  11  Paige,  21.  v.  Girod,  4  How  555.  Prevost  v.  Gratz, 
6  Ackcnnan  v.  Err.ott,  4  Barb.  026.  0  Wheat.  4S1.  Oliver  v.  Piatt,  3  How. 
*  Holt  v.  Holt,  1  Ch.  Cas.  601.    Whelp-    333.     Fox  v.  Mackreth,  White's  Leading 

dale  v.  Cookson,  5  Ves.  6S2.  Sanderson  Gas.  in  Eq.  and  the  American  notes;  and 
v.  Walker,  13  id.  601.  Morse  v.  Royal,  see  post,  under  Trusts,  where  the  same 
12  Ves.  355.  ■  subject  is  treated  tinder  a  dilieient  aspect 


Ch.  3.]  Executors  and  Administrators,  &c.  1S9 

ready  cited,  those  referred   to  below  establish  and  illustrate  the  same 
principles. 

The  doctrine  we  have  been  considering  is  applicable  to  executors  and 
administrators,  who  are  not  permitted  to  purchase  up  the  debts  of  the 
deceased  on  their  own  account ;  but,  in  this  and  most  other  respects,  stand 
on  the  footing  of  other  trustees. 

In  like  manner  it  applies  to  the  relation  of  landlord  and  tenant,  prin- 
cipal and  agent,  principal  and  surety,  partner  and  partner,  and  various 
others,  where  mutual  agencies,  rights  and  duties  are  created  between  the 
parties,  either  by  their  own  acts,  or  by  operation  of  law. 

In  the  case  of  principal  and  agent,  the  principal  contracts  for  the  skill 
and  judgment  of  the  agent,  and  he  has  a  right  to  expect  from  him  the 
utmost  fidelity.  The  habitual  confidence  reposed  in  the  latter,  imparts 
to  bis  acts  and  statements  a  controlling  influence  over  the  conduct  of  the 
former.  Hence,  the  law  watches  with  jealousy  the  dealings  of  the  agent, 
and  does  not  permit  him,  when  his  duty  requires  him  to  act  for  the  prin- 
cipal, to  act  for  his  own  exclusive  benefit. 

Upon  this  principle  an  agent,  employed  to  sell,  cannot  make  himself 
the  purchaser  ;  nor  if  emplo}*ed  to  purchase,  can  he  be  himself  the  seller.' 
The  rule  of  equity  which  prohibits  purchases  by  parties  placed  in  a 
situation  of  trust  and  confidence,  with  reference  to  the  subject  of  pur- 
chase, is  not  confined  to  trustees,  or  others  who  hold  the  legal  title  tc 
the  property  to  be  sold ;  nor  is  it  confined  to  a  particular  class  of  per- 
sons, such  as  guardians,  trustees  or  solicitors.  But  it  is  a  rule  which 
applies  universally  to  all  who  come  within  the  principle;  which  principle 
is.  that  no  party  can  be  permitted  to  purchase  an  interest  in  property 
and  hold  it  for  his  own  benefit,  when  he  has  a  duty  to  perform  in  rela- 
tion to  such  property,  which  is  inconsistent  with  the  character  of  a  pur- 
ohaser  on  his  own  account,  and  for  his  individual  use.2  And  a  sub-agent 
is  just  as  much  disqualified  as  an  agent  is  to  make  a  purchase  in  opposi- 
tion to  the  rights  and  interests  of  his  principal.3  And  when  an  agent, 
employed  to  purchase  an  estate,  becomes  the  purchaser  for  himself,  a 
court  of  equity  will  treat  him  as  a  trustee  for  his  principal.4  On  the 
same  ground,  an  agent  is  precluded  from  taking  the  benefit  of  purchas- 
ing a  debt  which  his  principal  was  liable  to  discharge.     If  employed  tc 

1  Lowther  v.  Lowther,  13  Ve3.  103.  '  Story,  J.,  Baker  v.  "Whiting,  1  Story'* 

■  Per  Walworth,  Ch.  in  Van   Epps  v.    Pw.  241. 
Van    Epps,    9    Paige,    241.     Hawlcy    v.        '  Lees  v.  Xuttall,  1  B.  &  Myl.  47. 
Cramer,  4  Cowen,  717.     Price  v.  Price, 
C  Borb.  538. 


190  Of  i'RAUD.  [Oh.  a 

settle  the  debt  on  behalf  of  his  employer,  his  duty  is  to  settle  it  upon 
the  best  terms  he  can  obtain.  If  he  is  abl«  to  procure  a  settlement  of 
the  debt  for  any  thing  less  than  the  whole  amount,  it  would  be  a  viola- 
tion of  his  duty  to  his  employer,  or,  at  least,  would  hold  out  a  temptation 
to  violate  that  duty,  if  he  might  take  an  assignment  of  the  debt,  and  so 
make  himself  a  creditor  of  his  employer  to  the  full  amount  of  the  debt 
which  he  was  employed  to  settle.  The  same  duty  devolves  on  a  surety 
who  compounds  a  debt  for  which  his  principal  and  himself  have  become 
jointly  liable,  and  takes  an  assignment  thereof,  to  a  trustee,  for  himself; 
he  can  only  claim  against  his  principal  the  amount  which  he  has  actually 
paid.1  And  so  an  agent,  who  discovers  a  defect  in  the  title  of  his  prin- 
cipal to  land,  cannot  misuse  it  to  acquire  a  title  for  himself;  and  if  he 
does,  he  will  be  held  as  a  trustee,  holding  for  his  principal.2 

If  a  trustee  or  an  agent  undertakes  to  purchase  of  the  owner  an  estate, 
or  stocks,  or  debts,  with  the  condition  of  which  he  may  be  well  acquaint- 
ed,  and  of  which  the  owner  is  entirely  or  partially  ignorant,  there  is  no 
doubt  a  sufficient  disclosure  should  be  made  to  enable  the  owner  to 
judge  of  the  adequacy  of  the  offer  made.  If  there  is  any  thing  mis- 
represented or  concealed,  or  withheld  without  a  design  to  conceal,  the 
bargain  will  be  void.3  This  rests  upon  the  fiduciary  relation  between 
the  parties,  by  which  the  agent  is  bound  to  make  a  full  disclosure,  w* 
from  the  confidence  which  the  principal  reposes  in  his  agent. 

The  relation  which  principal  and  surety  bear  to  each  other  is,  in  some 
respects,  analogous  to  that  of  partners,  and  the  two  cases  may  be  appro- 
priately treated  together.  It  results  from  the  nature  of  partnership 
that  each  partner,  during  the  continuance  of  the  partnership,  is  agent 
for  his  copartners,  in  all  matters  pertaining  to  their  joint  business,  but, 
at  the  dissolution  of  the  partnership,  this  agency  ceases  with  respect  to 
new  transactions,  and  exists  only  for  the  legitimate  purposes  connected 
with  the  winding  up  of  the  concern.4  Hence  the  signature  of  one  part- 
ner, in  matters  of  simple  contract,  relating  to  the  partnership,  binds  the 
firm.5  One  partner  may  release  a  debt  due  to  the  firm,  or  create  a  debt 
gainst  it.6     A  release  to  one  discharges  the  debt  against  both.7     Pay- 

1  Reed  v.  Norris,  2  Myl.  &  Craig,  362,  6  Carvick  v.  Vickery,  Doug.  653.  Whit- 

374.  comb  v.  Whiting,  id.  652. 

-  Ringo  v.  Binns,  10  Pet.  269.  6  Per  Lord  Kenyon,  in  Perry  v.  Jack- 

3  Per  Parke,  Ck.  J.,  Farnam  v.  Brooks,  son,  4  D.  &  E.  519. 

9  Pick.  233.  '  Bac.  Abr.  Obligation.     Reed  v.  Me- 

4  Collyer  on  Part.  234-239,  62.     Grow    Eaughton,  15  Barb.  177. 
on  Part.  42. 


Jk.  3.J         Joint  Debtors,  Partners  and  Part  Owners. 


191 


ment  to  one  is  payment  to  the  firm.1  Notice  to  one  is  notice  to  all,  and 
notice  from  one  is  notice  from  all.  It  is,  on  this  principle  of  agency, 
that  an  acknowledgment  of  a  debt,  by  one  partner,  during  the  contin- 
uance of  the  firm,  was  held  to  revive  it,  if  outlawed,  against  the  firm, 
and  a  partial  payment  cither  of  interest  or  principal,  made  by  one  part- 
ner, to  continue  the  obligation  against  the  company.  The  same  princi-  i 
pie  applies  in  the  case  of  principal  and  surety  that  governs  in  the  case 
of  partners.  Each  was  treated  as  an  agent  for  his  companion  to  make 
payments,  and  the  effect  of  a  partial  payment  was  to  revive  the  debt  for 
the  balance.2  The  death  of  one  of  the  partners  revokes  the  agency,  and 
terminates  the  privity  existing  between  the  parties.3 


Joint  debtors  are,  with  respect  to  the  transaction  in  which  they  are 
united,  treated  as  partners,  and  subject  to  all  the  eonsefpiences  of  that 
relation.4  With  respect  to  payment  by  one,  or  a  release  or  notice  to  one 
of  several  joint  debtors,  the  effect  is  the  same  as  if  they  were  partners. 


:  Duff  v.  East  India  Co.  15  Ves.  213. 

-  Collyer  on  Part.  233,  and  notes.  A 
discussion  of  the  statute  of  limitations 
does  not  belong  to  this  subject  The  lead- 
ing case-  on  the  effect  of  a  partial  pay- 
ment will  be  found  discussed  in  Reid  v. 
MoNaughton,  15  Barb.  168  et  seq.  Bell 
v.  Morrison,  1  Pet.  351.  Van  Keuren  v. 
Par  melee,  2  Comst.  527.  And  most  of 
the  cases  are  collected  and  reviewed  in 
Angell  on  Limitations,  ch.  23,  p.  270  et 
seq.  It  is  believed  that  the  weight  of 
authority,  in  England  and  in  New-York, 
tiro  quite  recently,  sustains  the  position, 
that  each  partner  and  joint  debtor  is  an 
agent  for  his  companion,  to  make  pay- 
ment. The  code  of  procedure,  while  it 
enacts  that  no  acknowledgment  or  prom- 
ise shall  be  sufficient  evidence  of  a 
new  ov  continuing  contract,  whereby 
to  like  the  case  out  of  the  operation 
of  the  statute  of  limitations,  unless  the 
same  be  contained  in  some  writing,  sign- 
ed by  the  party  to  be  charged  thereby, 
expressly  leaves  the  effect  of  a  partial 
payment  of  principal  or  interest  as  at 
common  law.  Code  of  Procedure,  §  110. 
See  also  l  Smith's  Leading  Cases,  531  ; 
note  to  Whitcomb  v.  Whitine,  Doug.  652. 


This  latter  is  the  leading  case  on  the  sub- 
ject of  one  debtor  being  a  quasi  agent 
for  his  co-debtor,  which  is  approved  in 
Reid  v.  MoNaughton,  supra,  and  Lane  v. 
Doty,  4  Barb.  530.  The  recent  decision 
of  the  court  of  appeals,  in  Shoemaker  v. 
Benedict,  1  Kernan,  176,  has  carried  out 
the  reasoning  of  the  judge  who  delivered 
the  opinion  of  that  court,  in  VanKeuran 
v.  Parmelee,  to  its  consequences.  It  is 
now  held  in  this  state,  that  payments 
made  by  one  of  the  joint  and  several 
makers  of  a  note,  and  indorsed  t-ipon  it, 
before  an  action  upon  it  is  barred  by  the 
statute  of  limitations,  and  within  six 
years  before  suit  brought,  do  not  affect 
the  defense  of  the  statutes  as  to  the  oth- 
ers. It  seems  then,  that  in  this  state, 
there  is  no  mutual  agency  between  joint 
debtors,  which  will  author'  •  one  to  act 
for  and  bind  the  others  in  a  manner  to 
vary  or  extend  their  liability.  It  is  be- 
lieved that  the  foregoing  decision,  in 
Shoemaker  v.  Benedict,  took  the  profes- 
sion in  this  state  by  surprise. 

3  Lane  v.  Doty,  4  Barb.  530.  Atkins 
v.  TredgoW,  2  B.  &  C.  23.  Slater  v.  Law- 
son,  1  B.  &  Ad.  396. 

*  Reid  v.  McXaughton,  15  Barb.  178. 


192  Of  Fraud.  [Cli.  8 

Each  joint  debtor  is  a  principal  for  the  payment  of  the  portion  of  the 
debt  belonging  to  him  to  discharge,  and  is  a  surety  for  his  companions, 
that  they  shall  pay  their  shares.  By  the  death  of  one  of  several  joint 
debtors,  the  remedy  of  the  creditor,  at  law,  survives  against  the  survivor, 
and  he  alone  can  be  sued  and  be  compelled  to  pay  the  whole  debt.  On 
such  payment  the  personal  representatives  of  the  deceased  are  bound  to 
contribute  their  proportionate  share.1  But  every  joint  loan,  -whether 
contracted  in  relation  to  mercantile  transactions  or  not,  is,  in  equity,  to 
be  deemed  joint  and  several.  Therefore,  according  to  the  English  doc- 
trine, upon  the  death  of  one  of  several  joint  contractors,  or  obligors,  the 
creditors  have  a  right  in  equity  to  immediate  relief  out  of  his  assets,  with- 
out claiming  any  relief  against  the  surviving  joint  contractors  or  obligors, 
or  showing  that  the  latter  were  unable  to  pay  by  reason  of  their  insol- 
vency,2 though  the  latter  are  necessary  parties.  The  reason  of  this  doc- 
trine was  thus  expounded  by  the  master  of  the  rolls,  in  the  last  mention- 
ed case  of  Wilkinson  v.  H?nderson  :  "  All  the  authorities  establish  that, 
".n  the  consideration  of  a  court  of  equity,  a  partnership  debt  is  several  as 
/veil  as  joint.  The  doubts  upon  the  question,  whether  the  assets  of  the 
deceased  might  be  first  resorted  to.  seem  to  have  arisen  from  the  genera.! 
principle,  that  the  joint  estate  is  the  first  fund  for  the  payment  of  the 
joint  debts,  and,  that  the  joint  estate  vesting  in  the  surviving  partner, 
the  joint  creditor,  upon  equitable  considerations,  ought  to  resort  to  the 
surviving  partner,  before  he  seeks  satisfaction  from  the  assets  of  the  de- 
ceased partner.  It  is  admitted  that  if  the  surviving  partner  prove  to  be 
unable  to  pay  the  whole  debt,  the  joint  creditor  may  then  obtain  full 
satisfaction  from  the  assets  of  the  deceased  partner.  The  real  question 
then  is,  whether  the  joint  creditor  shall  be  compelled  to  pursue  the  sur- 
viving partner  in  the  first  instance,  and  shall  not  be  permitted  to  resort 
to  the  assets  of  the  deceased  partner  until  it  is  established  that  full  sat- 
isfaction cannot  be  obtained  from  the  surviving  partner  ;  or  whether  the 
joint  creditor  may,  in  the  first  instance,  resort  to  the  assets  of  the  de- 
ceased partner,  leaving  it  to  the  personal  representatives  of  the  deceased 
partner  to  take  proper  measures  for  recovering  what,  if  any  thing,  shall 
appear  upon  the  partnership  accounts  to  be  due  from  the  surviving  part- 
ner to  the  estate  of  the  deceased  partner.  Considering  that  the  estate 
of  the  surviving  partner  is  at  all  events  liable  to  the  full  satisfaction  of 
the  creditors,  and  must,  first  or  last,  be  answerable  for  the  failure  of  the 
surviving  partner  ;  that  no  additional  charge  is  thrown  on  the  assets  of 

1  Haminerly  v.  Lambert,  2  J.  Ch.  R.        a  Thorpe  v.  Jackson,  Yonnge&C.  55c. 
209.  Wilkinson  v.  Henderson,  1  My].  &  K.  582 


Oh.  3.]  Joint  Debtors.  103 

the  deceased  partner  by  the  resort  to  them  in  the  first  instance,  and 
that  great  inconvenience  and  expense  might  otherwise  be  occasioned  to 
the  joint  creditors ;  and  further,  that  according  to  the  two  decisions  in 
Sleech's  case,  and  in  the  case  of  Devaynes  v.  Noble,  the  creditor  wa3 
permitted  to  charge  the  separate  estate  of  the  deceased  partner,  which 
in  equity  was  primarily  liable,  as  between  the  partners,  without  first 
having  resort  to  dividends,  which  might  be  obtained  by  proof  under  the 
commission  against  the  surviving  partner,  I  am  of  opinion  that  the  plain- 
tiff is  entitled  in  this  case  to  a  decree  for  the  benefit  of  himself,  and  all 
other  joint  creditors,  for  the  payment  of  his  debt  out  of  the  assets  of  the 
deceased  partner." 

This  doctrine  is  not  confined  to  partnerships  or  to  mercantile  cases. 
It  is  equally  applicable  to  all  joint  debts  ;  for  the  debt  will  be  treated  in 
equity  as  joint  and  several.  And  in  case  any  of  the  debtors  die,  relief 
will  be  granted  in  equity  out  of  his  assets,  without  claiming  any  relief 
against  the  surviving  joint  debtors,  or  showing  that  they  are  unable  to 
pay  by  reason  of  their  insolvency.1 

The  rule  is  different  in  this  state,  as  will  be  shown  more  at  large  un- 
der  the  head  of  Partnership.  "We  have  followed  the  earlier  English 
cases  in  the  times  of  Lord  Hardwicke,  and  declined  to  follow  the  more 
recent  decisions  in  England.  "With  us,  the  personal  representatives  of 
the  deceased  joint  debtor  cannot  be  reached  without  alleging  and  show- 
ing the  insolvency  of  the  surving  debtor.2 

The  same  good  faith  must  be  used  by  joint  debtors  towards  each  other, 
as  is  required  in  case  of  principal  and  surety,  and  principal  and  agent; 
and  the  cases  applicable  to  the  one  relation,  have  an  appropriate  bearing 
on  the  other.  The  doctrine  we  have  considered  in  relation  to  agency,  is 
applicable  also  to  joint  debtors.  Good  faith  and  ingenuous  dealings  is 
exacted  from  all  who  hold  either  of  the  relations  above  mentioned.3 

All  that  has  been  said  in  relation  to  partners  is  equally  applicable  to 
part  owners  of  vessels.  Each  part  owner  is  under  the  same  obligation 
of  good  faith  towards  his  companion,  that  the  agent  is  to  his  principal, 
and  as  one  partner  is  to  his  associates.  It  is  a  relation  in  which  the  same 
confidence  is  reposed,  as  in  those  we  have  been  considering. 

lThf*pe  v.  Jackson,  2  Y.  &  0.  550.  nnng,5id.254.  Payne  v.  Mathewson,  Old. 

Sleech's  case,  1  Meriv.  530.     "Wilkinson  19.    Lawrence  v.  The  Trustees  of  Leake's 

v.  Henderson,  1  Myl.  &  K.  5S2.     Devayne  Orphans,  2  Denio,  577.     11    Paige,    80. 

v.  Noble,  2  Russ.  &  Myl.  495.  Smith  v.  Ballantine,  10  id.  101.    Jenkins 

'  Hammersly  v.  Lamhert,  2  J.  Ch.  P.  v.  Groot,  1  Cai.  C.  E.  121. 

508.     Wilder    v.    Keeler,    3  Paige,  162.  3  Dob.  v.  Halsey,  16  J.  P.  34.     Post  v. 

Brown  v.  Story,  2  id.  59-4.     Butts  v.  Ga-  Kimberly,  9  id.  489,  per  Thompson,  J. 

Eo.   Jcr.  25 


' 


194  Of  Fraud.  [Ch.  3. 

The  class  of  cases  to  ■which  our  attention  has  been  directed,  in  -which 
the  dealings  of  parties  standing  in  a  confidential  relation  to  each  other 
are  called  in  question,  are  often  treated  as  falling  under  the  head  of  con- 
structive fraud ;  and  probably,  in  most  instances,  they  are  properly  so 
denominated.  The  rule  of  equity  which  requires,  in  most  of  these  cases, 
that  the  burden  of  proving  the  fairness  of  the  transaction  should  be  cast 
upon  the  party  seeking  to  enforce  an  advantage  he  had  acquired  from 
one  holding  such  relation  to  him  as  to  excite  the  jealousy  of  the  court,  is 
sometimes  treated  as  a  rule  devised  to  prevent  fraud.  But  in  nearly  all 
the  cases  under  these  heads,  which  have  formed  the  subject  of  judicial 
examination,  some  other  ingredient,  besides  the  mere  confidential  rela- 
tion of  the  parties,  such  as  undue  influence,  concealments,  misrepresenta- 
tions, inadequate  consideration,  or  surprise,  has  entered  into  the  dealings 
between  the  parties,  and,  in  whole  or  in  part,  afforded  the  ground  for 
equitable  relief.  It  is,  therefore,  impossible  to  introduce  a  classification 
which  will  be  perfectly  accurate.  The  relief  granted  in  all  these  cases 
is  properly  referable  to  the  head  of  fraud,  and  whether  in  each  case  it  be 
actual,  or  only  constructive  fraud,  or  a  mixture  of  both,  is,  so  far  as  the 
remedy  is  concerned,  a  matter  of  minor  importance. 


SECTION  III. 

OF    TRANSACTIONS  WHERE  AN   UNCONSCIENTIOUS  ADVANTAGE  HAS  BEEN  TAKEN 
OF    THE    MENTAL   WEAKNESS    OF    A    PARTY. 

Having  thus  considered  how  equity  deals  with  cases  arising  between 
parties  standing  to  each  other  in  a  relation  implying  confidence,  we  pass 
to  another  class  of  cases  in  which  an  unconscientious  advantage  has  been 
taken  of  persons  disabled  by  Weakness,  Infirmity,  Age,  Lunacy,  Idiocy, 
Drunkenness,  Coverture,  Infancy,  or  other  incapacity,  from  protecting 
their  own  interests. 

It  has  already  been  stated,  that  the  consent  requisite  to  make  a  valid 
agreement  is  an  act  of  reason,  accompanied  with  deliberation ;  the  mind 
weighing,  as  in  a  balance,  the  good  and  evil  on  either  side ;  and  it  was 
further  remarked,  that  every  true  consent  implies,  first,  a  physical  power ; 
secondly,  a  moral  power  of  consenting ;  and  thirdly,  a  serious  and  free 
use  of  them.1     Creatures  void  of  reason  and  understanding  are  incapablo 

1  Ante,  p.  170.     1  Fonb.  Eq.  B.  1,  ch.  2,  §  1. 


Cli.  3.]  Relief  in  Cases  of  Weakness  op  Mind.  191 

of  giving  a  serious  and  firm  assent.  If  the  party  had  not  sufficient  men- 
tal capacity  to  give  consent,  or  if  the  consent  were  obtained  by  fraud, 
duress,  surprise,  or  undue  influences,  no  valid  contract  can  be  made. 

If,  then,  the  acts  and  contracts  of  a  person  non  compos  mentis  be  in 
general  invalid,  as  they  obviously  must  be  in  reason  and  justice,  the 
inquiry  is,  by  whom  and  in  what  manner  can  they  be  avoided  ?  It  was 
laid  down  by  the  early  writers  of  the  common  law,  that  no  man  of  full 
age  should  be  admitted  to  stultify  himself.  In  Beverly's  case,1  it  was 
held  that  the  deed,  feoffment  or  grant,  which  any  man  non  comjyos  mentis 
makes,  is  voidable  not  by  himself,  but  by  his  privies  in  blood,  or  in  repre- 
sentation. In  the  same  case,  Coke  says,  every  act  which  a  person  non 
xiom/ws  does,,  either  concerns  his  life,  his  lands  or  his  goods  ;  also  every 
act  which  he  does,  is  either  in  pais  or  in  a  court  of  record ;  all  acts  which 
he  does  in  a  court  of  record,  either  concerning  his  lands  or  goods,  shall 
bind  himself  and  all  others  forever  ;  all  acts  which  he  does  concerning 
his  lands  or  his  goods  in  pais,  m  some  cases  shall  only  bind  himself 
during  his  life,  and  in  some  shall  bind  forever.  The  same  doctrine  is 
laid  down  in  Bacon's  Abridgment,  under  the  head  of  Idiots  and  Lunatics, 
and  the  reason  assigned  why  a  man  shall  not  be  permitted  to  disable 
himself,  is  to  prevent  the  insecurity  that  might  arise  in  contracts  from 
counterfeit  madness  and  folly  ;  and  from  the  repugnancy  that  the  party 
should  know  or  remember  what  he  did.  But  the  heirs  and  executors 
O  ay  avoid  such  acts  in  pais,  by  pleading  the  disability )  for  there  is  no 
such  repugnancy  in  their  pleading  it.2  But  this  ancient  rule  of  the 
common  law  has,  in  modern  times,  given  way  in  England  to  more  enlight- 
ened notions  of  justice,3  and  it  has  been  wholly  repudiated  in  this  coun- 
try.4 Courts  of  equity  have,  in  England,  held  that  the  maxim  before 
mentioned  is  to  be  understood  of  acts  done  by  the  lunatic  in  prejudice  of 
others,  but  not  as  to  acts  done  by  him  in  prejudice  of  himself,  for  this 
can  have  no  foundation  in  reason  and  natural  justice.5 

with  regard  to  what  constitutes  a  want  of  mental  capacity,  the  rule  in 
equity  is  the  same  as  at  law.  There  cannot,  says  Lord  Hardwicke,  be 
two  rules  of  judging  in  law  and  in  equity,  upon  the  point  of  insanity.' 
And  in  Osmand  v.  Fitzroy,  the  master  of  the  rolls  said,  there  was  no 
such  tiring  as  an  equitable  incapacity,  when  there  is  legal  capacity.7 

1  4  Coke,  123.  530.     Rice  v.  Pelt,  15  J.  R.  503.    Mitch- 

*  Bac.  Abr.  tit.  Idiots  and  Lunatics,  F.  ell  v.  Kingman,  5  Pick.  431.  Webster  v. 
2  Bl.  Com.  291.     Litt.  §  405.     Co.  Litt.     Woodford,  3  Day,  90. 

247,  a.  *  1  Fonb.  Eq.  B.  1,  cb.  2,  §  2. 

3  Gates  v.  Boen,  2  Str.  1104.  6  Bennett  v.  Vade,  2  Atk.  327. 

*  2  Kent's  Com.  451.    Dean's  Med.  Jur.        7  8  P.  Wins.  130. 


196  Of  Fraud.  [Ch.  3 

"We  shall  have  occasion,  in  a  subsequent  chapter,  to  treat  of  the  sub- 
ject of  idiots,  lunatics,  and  persons  of  unsound  mind,  and  habitual 
drunkards,  and  of  the  mode  in  which  the  jurisdiction  over  this  class  of 
persons  and  their  estates  is  exercised  by  courts  of  equity.'  At  present 
we  are  treating  of  the  relief  afforded  by  the  courts  against  the  acts  of 
these  persons,  in  connection  with  the  subject  of  fraud,  either  actual  or 
constructive.  It  is  sufficient,  therefore,  in  this  place,  to  say  that  a  luna- 
tic, or  non  compos  mentis,  is  one  who  hath  had  understanding,  but  by 
disease,  grief,  or  other  accident,  hath  lost  the  use  of  his  reason.  A 
lunatic  is  indeed  properly  one  that  hath  lucid  intervals  ;  sometimes  enjoy- 
ing his  senses  and  sometimes  not,  and  that  frequently  depending  upon 
the  changes  of  the  moon.  But  under  the  general  name  of  non  compos 
mentis,  which  Sir  Edward  Coke  says,  is  the  most  legal  term,  are  com- 
prised not  only  lunatics,  but  persons  under  frenzies ;  or  who  lose  their 
intellects  by  disease  ;  those  that  grow  deaf,  dumb  and  blind,  not  being 
born  so,  or  such,  in  short,  as  are  adjudged  by  the  court  incapable  of  con- 
ducting their  own  affairs.2 

The  question  with  respect  to  the  mental  capacity  necessary  to  make  a 
valid  deed  arose  in  an  action  of  ejectment,  and  was  decided  by  the  su- 
preme court,  in  a  leading  case.3  It  was  there  laid  down,  that  to  establish 
incapacity  in  a  grantor,  he  must  be  shown  to  have  been  at  the  time  non 
compos  mentis,  in  the  legal  acceptation ;  that  by  that  term  was  meant 
not  a  partial  but  an  entire  loss  of  the  understanding.  The  ground  w&S 
taken  by  the  learned  judge,  that  the  common  law  seems  not  to  ha\e 
drawn  any  discriminating  line  by  which  to  determine  how  great  must  be 
the  imbecility  of  mind  to  render  a  contract  void,  or  how  much  intellect 
must  remain  to  uphold  it.  "Weakness  of  understanding  is  not,  of  itself, 
any  objection  to  the  validity  of  a  contract.  If  a  man  be  legally  compos 
mentis,  he  is  the  disposer  of  his  own  property,  and  his  will  stands  for 
the  reason  for  his  actions.  These  principles  have  been  frequently  affirm- 
ed since,  as  well  in  relation  to  deeds  as  to  wills.4  The  full  discussion  of 
this  branch  of  the  subject  belongs  to  treatises  on  medical  jurisprudence.5 

Such  being  the  law  with  respect  to  mental  competency,  we  will  pro- 
ceed to  show  in  what  manner  courts  of  equity  deal  with  the  subject.  As 
persons  laboring  under  this  malady  are  incapable  of  entering  into  a  valid 


See  post,  Chapter  onldiots,  &c.  v.  Fisher,  1   Paige,  171.    Blanchard  v. 

*  1  Bl.  Com.  315.  Nestle,  3  Denio,  37.    Osterhout  v.  Shoe- 

"  Jackson  v.  Caldwell,  4  Cowen,  207.  maker,  id.  note. 

4  Odell  v.  Buck,  21  Wend.  142.     Stew-        6  See  Dean's  Med.  Juris.  555  et  seq.     a 

art  . .  Lispenard,  26  id.  298  et  seq.    Clark  Mad.  Ch.  Pr.  565  el  seq. 


Cli  3.]  Relief  in  Cases  of  "Weakness  of  Mind.  197 

contract,  any  individual  who  knowingly  deals  with  them,  is  chargeable 
with  fraud. 

The  extreme  anxiety  of  courts  of  law  to  protect  the  authority  of  their 
records,  has,  in  former  times,  led  them  to  give  efficacy  to  a  fine  levied  by 
a  man  A\ho  was  obviously  an  idiot,  and  obtained  by  a  gross  contrivance. 
But  in  equity,  the  remainderman  was  relieved  against  a  fine  levied  by  an 
idiot,  even  against  a  purchaser.  The  court  of  chancery,  however,  in  the 
case  of  fraud,  it  is  said,  does  not  set  aside  or  vacate  the  fine  ;  but  con- 
sidering those  who  have  taken  it  under  such  circumstances,  as  trustees, 
decrees  a  reconveyance  of  the  estate  to  the  persons  prejudiced  by  the 
fraud.' 

The  deed  of  a  person  non  compos  mentis,  may  be  avoided  for  fraud,  in 
a  court  of  law,  but  the  action  of  ejectment  must  be  brought  in  the  name 
of  the  lunatic,  and  not  in  that  of  his  committee.2  And  this  is  so  though 
the  inquisition  find  the  party  of  unsound  mind  from  his  nativity.3  And 
the  action  may  be  brought  against  the  lunatic,  by  his  grantor,  if  the 
lunatic  be  in  possession  ;  but  to  constitute  a  defense  it  must  be  shown 
that  there  was  a  total  want  of  understanding  in  the  grantor,  at  the  time 
the  deed  was  executed.4  In  analogy  to  these  cases,  it  should  seem  that 
if  the  lunatic  seek  to  set  aside  the  deed,  in  a  court  of  equity,  for  fraud,  the 
actios  should  be  in  his  own  name  if  he  be  living,  notwithstanding  there 
I  e  a  committee  of  his  person  and  estate.  The  committee  is  a  mere  bailiff' 
or  servant,  and  the  interest  and  right  of  action  remain  in  the  lunatic. 
And  the  action  should  be  brought  by  him  who  has  the  legal  interest. 
And  this  is  so,  whether  the  action  be  for  the  recovery  of  real  or  personal 
property,  and  whether  the  action  be  at  law  or  in  equity.5 


'Mansfield's  case,  12  Coke,  124.    Fonb.  3  Barb.  Ch.  R.  24.     But  now,  by  statute, 

Eq.  B.  1,  oh.  2,  §  2,  and  note  k.     Bush-  L.  of  1845,  p.  91,  §  2,  receivers  and  com- 

loy  v.  Mansfield,  Tothilfs  Trans.  42.     Ad-  mittees  of  lunatics  and  habitual  druuk- 

dison  v.  Mascall,  2  Vern.  678.     Wilkin-  ards,  appointed  by  any  order  or  decree 

Don  v.  Brayfield,  2  Id.  307.  of  the  court  of  chancery,  may  sue   in 

1  Lane   v.   Schermerhorn,   1   Hill,  97.  their  own  name,  for  any  debt,  claim  or 

IVirie  v.  Shoemaker,  24  Wend.  85.  Oster-  demand  transferred  to  them,   or  to  the 

bout  v.  Shoemaker,  3  Deuio,  37,  note.  possession  or  control  of  which  they  are 

3  Id.  entitled  as  such  receiver  or  committee, 

*  Odell  v.  Buck,  21  Wend.  142.  and  when  ordered  to  sell  such  demands, 

'  Lane   v.   Schermerhorn,    1  Hill,   97.  the  purchaser  thereof  may  sue  and  re- 

Stew.art  v.  Graham,  19  Ves.  312.     Cox  cover  therefor  in  his  own  name,  but  shall 

v.  Dawson,  Noy's  B.  27.     Shelf,  on  Lun.  give  such  security  for  costs  to  the  de- 

395.     But  see  2  Madd.  Oh.  Pr.  592,  593 ;  fendant,  as  the  court  in  which  such  suit 

Teal  v.  Woochvorth,  3  Paige,  470;  New  is  brought  may  direct. 

r.  Neiv,  6  id.  207;  Gorhain  v.  Gorham, 


198  Or  Fract*.  [Ch.  3. 

It  was  held  by  Chancellor  Kent  that  it  is  not  necessary  for  thelunatk 
to  be  a  party  plaintiff  with  his  committee,  to  set  aside  an  act  done  by  the 
lunatic  while  under  mental  imbecility.  He  deemed  it  matter  of  form ; 
and  thought  the  lunatic  might  be  joined  with  his  committee,  or  omitted. 
The  general  practice  was  said  to  be  to  unite  the  lunatic  with  the  commit- 
tee, as  was  done  in  2  Vern.  678.1  The  provisions  of  the  New- York  code 
of  procedure  would  seem  to  require  the  action  to  be  brought  in  the  name 
of  the  lunatic,  he  being  the  real  party  in  interest.2  Bat  it  must  undoubt- 
edly be  conducted  under  the  direction  of  the  committee.3 

A  person  deaf  and  dumb  from  his  nativity  is  not  therefore  an  idiot  or 
non  compos  mentis;  though  such  perhaps  may  be  the  legal  presumption 
until  his  capacity  is  proved,  on  inquiry  and  examination  for  that  purpose.* 

Irrespective  of  fraud  in  other  respects,  it  should  seem  that  a  convey- 
ance, executed  by  a  person  who  at  the  time  was  a  fit  subject  for  a  com- 
mission, under  the  statute,  to  a  party  knowing  of  the  incapacity,  would 
be  relieved  against  in  equity  ;s  but  a  weakness  and  incapacity  falling 
short  of  this,  will  not  afford  ground  for  the  interposition  of  the  courts, 
without  some  other  evidence  of  fraud,  imposition,  surprise,  or  inade- 
quacy of  consideration.6  For,  as  was  said  by  Sir  Joseph  Jekyl.  when  a 
weak  man  gives  a  bond,  if  there  be  no  fraud  or  breach  of  trust  in  the 
obtaining  it,  equity  will  not  set  it  aside,  for  the  weakness  of  the  obligor, 
if  he  be  compos  mentis  ;  neither  will  the  court  measure  the  size  of  peo 
pie's  understanding  or  capacities,  there  being  no  such  thing  as  an  equita- 
ble incapacity,  where  there  is  a  legal  capacity.7  But  in  the  case  he  was 
considering,  there  was  both  fraud  and  a  breach  of  trust  in  obtaining  the 
bond,  and  it  was  given  for  a  sum  grossly  disproportioned  to  the  services 
:>f  the  obligee,  and  the  court  set  it  aside,  on  the  ground  of  fraud. 

But  a  party  making  a  contract  with  a  person  whom  he  knows  to  be  a  Jit 
mbject  for  a  commission,  is  guilty  of  a  fraud.  Such  is  the  inference  of 
Law.  And  the  case  must  be  very  special  indeed,  which  should  induce  the 
court  to  withhold  relief  against  this  act. 

1  Ortley  v.  Messere,  7  J.  Cb.  R.  139.  that  situation,  upon  a  bill  filed  for  that 

2  Code,  §  111.  Grinnell  v.  Schmidt,  2  purpose,  when  the  court  would  not  have 
Sandf.  S.  C.  R.  70&.  the  power  to  deprive  him  of  the  right  to 

3  L.  of  1845,  p.  91,  §  2.  the  possession  and  control  of  his  property, 

4  Brown  v.  Fisher,  4  J.  Ch.  R.  441.  on  the  supposition  that  he  was  a  person 
6  In  the  matter  of  Morgan,  7  Paige,    of  unsound  mind."     And  sec  Blackford 

236.     In   this  case  the  chancellor  says:  v.  Christian,  1  Knapp's  R.  77. 

w  Many  cases  may  arise  in  which  the  mind        6  Sprague  v.  Duell,  11  Paige,  4S0.  OdeL 

and  memory  are  so  far  impaired  as  to  v.  Buck,  21   "Wend.   142.     Osterhout  v, 

afford  grounds  for  setting  aside  an  im-  Shoemaker,  3  Denio,  37,  n. 

pro-,  ident  agreement  made  by  a  person  iL        '  Osmond  v.  Fitzroy,  3  P.  Wins.  130. 


Ch.  3.]  Transac  ;ions  in  Cases  of  Lunacy.  199 

At  law.  the  acts  of  a  lunatic  before  office  found  are  not  void  but  void- 
able ;  alienations  by  a  lunatic,  or  other  person  of  unsound  mind,  after  office 
found,  are  absolutely  void.1  But  a  court  of  equity  will  not  interfere  to 
set  aside  a  contract,  overreached  by  an  inquisition  in  lunacy,  if  fair  and 
without  notice,  especially  when  the  parties  cannot  be  reinstated.2  Re- 
lief in  equity  in  such  cases,  depends,  it  is  said,  very  much  upon  the  circum- 
stances, and  no  general  rule  can  be  laid  down  upon  it.3 

And  it  has  been  held  in  Massachusetts,  that  a  person  under  guardian- 
ship as  7ion  compos  mentis  may  make  a  will,  if  he  is  in  fact  of  sound  mind, 
at  the  time  of  its  execution.  The  existence  of  the  relation  of  guardianship 
affords,  indeed,  prima  facie  evidence  of  insanity,  but  it  may  be  repelled 
by  showing  a  testamentary  capacity.  The  act  of  making  a  will  is  dis- 
tinguishable from  contracts,  and  other  acts  to  be  done  inter  vivos,  and 
involves  no  conflict  of  authority  with  the  guardian,  in  this  respect,  because 
the  will  cannot  operate  to  any  purpose,  till  the  death  of  the  testator,  and 
by  that  event,  the  authority  of  the  guardian  is  determined.4 

An  inquisition  is  only  presumptive  evidence  of  insanity,  and  not  con- 
clusive ;  so  that  upon  an  action  in  respect  of  any  contract  or  deed,  it  is 
for  a  jury  to  determine,  whether,  at  the  time  of  executing  it,  the  party 
was  non  compos,  though  by  the  inquisition  he  was  found  to  be  non  com- 
pos at  such  period.5  Such  inquisition  is  admissible,  though  not  conclu- 
sive evidence  of  the  lunacy  of  the  party,  in  an  action  brought  against  him 
upon  a  contract.6  Where  upon  a  bill  for  a  specific  performance  of  a  con- 
tract overreached  by  a  commission  of  lunacy,  the  plaintiff  not  having 
traversed  the  inquisition,  an  issue  was  directed  to  inquire  whether  the 
defendant  was  a  lunatic  at  the  execution.7 

In  one  case  where  the  lunatic  was  possessed  of  a  large  estate,  and  had 
so  far  recovered  his  reason  as  to  be  capable  of  disposing  of  his  estate  by 
will,  with  sense  and  judgment,  the  chancellor  suspended  the  proceedings 
against  him,  partially,  so  as  to  enable  him  to  make  a  will.8  The  effect  of 
such  suspension,  if  its  terms  were  complied  with,  removed  the  prima 


•  Jackson  v.  Gumaer,  2  Cowen,  508.  Lunacy,  462.     Bac.  Abr.  tit.  Idiots  and 
Burnby's  case,  4  Coke,  124.     2  Madd.  Ch.  Lunatics,  B. 

Pr.  594.  •  Hart  v.  Deamer,  G  Wend.  497.    Oster- 

'  Niell  v.  Morley,  9  Ves.  478.  hout  v.  Shoemaker,  3  Hill,  513.    Cowen 

3  Id.  &  Hill's  Notes,  942.     Shelf,  on  Lunacy, 

•  Iireed  v.Pratt,  18  Pick.  115.     Stone  63,  65.     1  Phil.  Ev.  300.     Sergeson  v. 
v.  Damon,    12  Mass.   487.     Leonard   v.  Sealy,  2  Atk.  412. 

Leonard,  14  Pick.  280.     Hall  v.  Warren,  '  Hall  v.  "Warren,  9  Ves.  605. 

9  Ves.  610.  8  In  the  matter  of  Burr,  2  Barb.  Ch.  B, 

•  2  Mad.  Ch.  Pr.  578.     1  Collinson  on  208. 


200  Ot   Fraud.  [Ch  3 

facie  presumption  of  a  want  of  testamentary  capacity,  and  left  it,  as  in 
other  persons,  a  matter  of  proof.  But  the  case  does  not  show  that  a 
person  against  whom  an  inquisition  of  lunacy  remains  in  full  force,  may 
not,  if  his  competency  be  in  truth  restored,  make  a  valid  testamentary 
disposition  of  his  property. 

But  a  court  of  equity  relieves  not  only  against  acts  done  by  idiots 
and  lunatics,  but  by  acts  done  and  contracts  made  by  one  under  the 
influence  of  drunkenness.  In  this  state,  where  an  habitual  drunkard, 
equally  with  an  idiot  or  lunatic,  is  the  subject  of  a  commission,  no  valid 
objection  can  be  urged  to  relief  against  an  act  committed  in  a  fit  of 
intoxication  in  which  the  party  was  utterly  deprived  of  his  reason  and 
understanding.1  Lord  Hardwicke  on  one  occasion  was  of  opinion  that 
the  drunkenness  of  one  of  the  parties  was  not  sufficient  to  set  aside  an 
agreement,  unless  some  unfair  advantage  was  taken ;  and,  therefore,  in 
the  case  before  him,  the  agreement  not  being  unreasonable,  and  no  unfair 
advantage  appearing  to  have  been  taken,  he  refused  to  set  it  aside, 
though  the  party  complaining  of  it  was  drunk  when  he  executed  it.2  But 
that  was  a  case  where  parties  had  come  to  a  reasonable  agreement,  in 
family  matters,  in  which  the  court  goes  a  great  way  to  carry  it  into  exe- 
cution.3 

Courts  of  equity  have  manifested  a  disposition  not  to  give  assistance 
to  a  person  who  has  obtained  an  agreement  or  deed  from  another  in  a 
state  of  intoxication  ;  and,  on  the  other  hand,  not  to  assist  a  person  to  get 
rid  of  any  agreement,  or  deed,  merely  upon  the  ground  of  his  having  been 
intoxicated  at  the  time  ;  but  if  there  was  any  unfair  advantage  taken  of 
his  situation,  or  any  contrivance  or  management  to  draw  him  in  to  drink, 
ne  might  be  a  proper  object  of  relief  in  a  court  of  equity.4  As  to  that 
extreme  state  of  intoxication  that  deprives  a  man  of  his  reason,  I  appre- 
hend, says  Sir  William  Grant,  that  even  at  law,  it  would  invalidate  a  deed 
obtained  from  him  while  in  that  state.5  And  this  seems  so  to  have  been 
decided,  and  to  be  admissible  in  evidence  in  an  action  upon  a  bond  under 
the  plea  of  non  est  factum.*  But  the  courts  have  not  enforced  agree- 
ments specifically  which  were  obtained  by  a  party  while  in  a  state  of 
intoxication. 


'  1  Fonb.  Eq.  B.  1  ch.  2,  §  3  and  notes.        4  White  v.  Cox,  3  Hayw.  82. 

a  Corey  v.  Corey,  1  Ves.  19  ;  and  see        B  Cook  v.  Clay  worth,  18  Ves.  15. 
remarks  of  Lord  Eldon  in  this  case,  in        6  Cole  v.  Bobbins,  Bull.  K  P.  172. 

Btockley  v.  Stockley,  1  Ves.  &  B.  31.  Mad.  Ch.  Pr.  239. 

*  Id.  7  Seymour  v.  Delancy,  3  Cowen,  445 


CI).  o.J  Mental  "Weakness.  201 

As  the  validity  of  agreements  depends  on  the  intelligent  assent  of  the 
reason  thereto,  it  would  seem  to  be  unimportant  whether  the  deprivation  of 
mental  capacity  be  from  the  visitation  of  God,  or  from  the  act  of  the  party 
himself.  It  seems  to  be  a  fraud  to  make  a  contract  with  a  man  who  is  so 
drunk  as  to  be  incapable  of  deliberation ;  and  if  so,  the  contracts  of  such 
persons  would,  one  might  think,  be  relievable  in  equity.1  The  writers 
on  natural  law,  Heineccius,  PuffendoriF  and  Pothier,  all  agree  in  consider- 
ing contracts  under  such  circumstances  as  invalid.2  With  respect  to  wills, 
it  is  said  by  Swinburn,  that  "he  that  is  overcome  by  drink,  during  the  time 
of  his  drunkenness  is  compared  to  a  madman,  and,  therefore,  if  he  make 
his  testament  at  that  time,  it  is  void  in  law  ;  which  is  to  be  understood, 
when  he  is  so  excessively  drunk,  that  he  is  utterly  deprived  of  the  use  of 
his  reason  and  understanding;  otherwise,  albeit,  his  understanding  is  ob- 
scured, and  his  memory  troubled,  yet  he  may  make  his  testament  being  in 
that  case."3 

It  has  already  been  said  that,  at  law,  mere  weakness  of  mind,  if  the 
man  be  legally  compos  mentis,  is  no  defense  to  an  action  founded  on  the 
contract,  or  other  acts  of  such  party.4  To  establish  any  standard  of  in- 
tellect or  information  beyond  the  possession  of  reason  in  its  lowest  de- 
gree, as  in  itself  essential  to  legal  capacity,  would,  as  was  well  said  by 
Verplanck,  senator,  in  a  great  case,5  create  endless  uncertainty,  difficulty 
and  litigation  ;  would  shake  the  security  of  property,  and  wrest  from  the 
aged  and  infirm  that  authority  over  their  earnings  or  savings  which  is 
often  their  best  security  against  injury  and  neglect.  If  you  throw  aside 
the  old  common  law  test  of  capacity,  then  proofs  of  wild  speculations  or 
extravagant  and  peculiar  opinions,  or  the  forgetfulness  or  the  prejudices  of 
old  age,  might  be  sufficient  to  shake  the  fairest  conveyances,  or  impeact 
the  most  equitable  will.  The  law,  therefore,  in  fixing  the  standard  of  pos- 
itive legal  competency,  has  taken  a  low  standard  of  capacity  ;  but  it  is  a 
clear  and  definite  one,  and  therefore  wise  and  safe.  It  holds,  (in  the  lan- 
guage of  a  late  English  commentator,  Shelford  on  Lunacy,  p.  39,)  that 
weak  minds  differ  from  strong  ones  only  in  the  extent  and  power  of  their 
faculties  ;  but  unless  they  betray  a  total  loss  of  understanding,  or  idiocy 
or  delusion,  they  cannot  properly  be  considered  unsound. 

1  "I  Mad.  Oh.   Pr.  239.     Reinicker  v.  Oowen,  218.     Osmond  v.  Fitzroy,  3  P 

Smith,  2  Parr.  &  J.  422.  Wigglesworth  Wins.  129.  1  Fonb.  Eq.  B.  1,  ch.  2,  §  S. 
v.  Steers,  1  lien.  &  Munf.  70.  5  Stewart's  Executors  v.  Lispenard,  26 

a  Id.     1  Fonb.  Eq.  15.  I,  ch.  2.  ?  3.  Wend.  303.     Odell  v.  Bucks,  21  Wend. 

'  Swinb.  Pt.  2,  §  fi      l   Will    Ex.83.  142.      Petrie  v.   Shoemaker,   24  id.  85. 

*  Ante,  p.  1S>6.     Juoksun  v  diklwell,  4  Blanchard  v.  Nestle,  3  Denio,  37. 

Ei ..  J  i  ]{.  L'U 


202  Of  Fraud.  [Ch.  3 

But,  though  this  be  so,  when  an  action  at  .<\w  is  brought  upon  the  con- 
tract made  by  a  person  alleged  to  be  of  feeble  intellect,  or  the  question  be 
on  the  legal  capacity  of  the  grantor  in  a  deed,  or  the  maker  of  a  last 
will  and  testament,  it  i&  quite  obvious  that  in  a  court  of  equity,  when  an 
application  is  made  to  set  aside  the  instrument  for  fraud,  or  to  enforce  it 
specifically,  weakness  of  mind  is  an  element  of  great  importance  in  ex- 
amining whether  the  contract  was  obtained  by  fraud,  undue  influence,  im- 
position or  surprise.  A  rash  or  hard  bargain  entered  into  by  men  dealing 
upon  equal  terms,  and  where  the  mental  capacity  of  both  is  compar- 
atively of  the  same  grade,  would  create  no  suspicion  of  fraud  or  imposi- 
tion, while  the  like  bargain  obtained  by  an  artful  and  designing  man,  from 
one  of  weak  understanding,  would  create  an  inference  of  circumvention 
or  undue  influence.1 

Accordingly,  it  has  been  held,  that  mental  imbecility,  not  amounting 
to  absolute  disqualification,  induces  a  strict  and  vigilant  examination  in 
chancery  of  the  contracts  made  by  one  laboring  under  it,  and  when  coupled 
with  gross  inadequacy  of  consideration,  they  constitute  such  evidence  of 
fraud  as  may  vacate  a  contract.2  It  has  already  been  shown  that  mental 
weakness,  short  of  this,  is  not  alone  sufficient  to  authorize  the  court  to  in- 
terfere ;  but  there  must  be  some  other  evidence  of  fraud,  imposition,  sur- 
prise, or  inadequacy  of  consideration.3 

Nor  is  inadequacy  of  consideration  alone,  a  sufficient  ground  in  ordi- 
nary cases,  for  setting  aside  a  conveyance  of  property.4  In  the  leading 
case  on  this  subject5  Lord  Thurlow  said,  if  the  court  should  take  such 
ground  as  to  rest  upon  the  market  price,  every  transaction  of  the 
kind  would  come  into  equity.  It  should  seem  that  mere  inadequacy  is 
scarcely  a  sufficient  ground,  but  there  is  a  difference  between  that  and 
evidence  arising  from  inadequacy.  If  there  is  such  inadequacy  as  to 
show  that  the  person  did  not  understand  the  bargain  he  made,  or  that 
knowing  it,  he  was  so  oppressed  as  to  be  glad  to  make  it,  it  will  show  such 
a  command  over  the  grantor  as  may  amount  to  fraud.  If  the  transaction 
be  such  as  marks  overreaching  on  one  side,  and  imbecility  on  the  other,  it 

1  1  Fonb.  Eq.  B.  1,  ch.  2,  §  3,  note  r.  4  Fonb.  Eq.  B.  1,  ch.  2,  §  9,  noted.   Os- 

2  Cruise  v.  Christopher's  Adininstra-  good  v.  Franklin,  2  J.  Ch.  R.  23.  Black- 
tor,  5  Dana,  182.  ford  v.  Christian,  1  Knapp'sB.77.    Dunn 

3  Ante,  p.  196.     In  Reinicker  v.  Smith,  v.  Chambers,  4  Barb.  376. 

2  Harr.  &  John.,  imbecility  of  mind  of        6  Heathcote  v.  Paignon,  2  Bro.  C.  C. 
one  of  the  contracting  parties  was  held    167. 
to  be  sulliciunt  evidence  of  fraud  to  set 
aside  the  contract. 


Oh.  3. J  Inadequacy  of  Consideration.  203 

puts  the  parties  in  such  a  situation  as  to  show  that  it  could  not  have  taken 
place  without  superior  power  on  the  one  side  over  the  other.  And  in  an 
other  case1  Lord  Thurlow  said,  that  to  set  aside  a  conveyance,  there  must 
he  an  inequality  so  strong,  gross  and  manifest,  that  it  must  be  impossible 
to  state  it  to  a  man  of  common  sense,  without  producing  an  exclamation 
at  the  inequality  of  it.  This  doctrine  has  been  approved  by  Lord  Eldon,2 
and  by  Sir  William  Grant.3  And  in  this  state  by  Chancellor  Kent,4  and 
Chief  Justice  Savage.5  And  in  one  case  Lord  Eldon  said,  if  the  terms 
of  a  bargain  are  so  extremely  inadequate,  as  to  satisfy  the  conscience  of 
the  court  by  the  amount  of  the  inadequacy,  that  there  must  have  been  im- 
position, or  that  species  of  pressure  upon  his  distress,  which,  in  the  view 
of  a  court  of  equity,  amounts  to  oppression,  the  court  would  set  it  aside, 
though  courts  of  law  might  hold  that  judgment  not  within  the  sphere  of 
their  powers.6  What  shall  be  called  gross  inadequacy ',  has  not  been  de- 
fined, unless  the  saying,  "  what  shakes  the  conscience,"  be  a  definition  ; 
but  when  a  sale  was  for  one  half  the  worth,  it  has  been  said,  that  it  would 
be  relieved  against.7 

The  question  of  inadequacy  must  be  determined  by  reference  to  the 
state  of  things  when  the  bargain  was  made,  and  not  by  changes  occasioned 
by  subsequent  events.8 

In  cases  where  imbecility  of  mind,  and  inadequacy  of  consideration 
unite,  though  neither  standing  alone  is  sufficient  under  ordinary  circum- 
stances to  invalidate  a  contract,  the  court  has  granted  relief  without 
other  evidence  of  imposition.  Thus,  in  one  case,  when  a  weak  man  sold 
an  inheritance  worth  forty  pounds  a  year  for  an  annuity  of  twenty  pounds 
a  year,  and  this  annuity  secured  only  by  a  covenant  instead  of  a  mortgage 
of  the  estate  ;  and  this  too,  to  a  person  seventy-two  years  old,  and  who 
had  not  the  deed  itself  in  his  hands,  it  was  declared  by  the  court  to  be 
fraud  apparent,  and  judging  upon  the  face  of  a  deed  is  judging  upon  evi- 
dence which  cannot  err ;  whereas  the  testimony  of  witnesses  may  be 
false.9 

So  where  imbecility  of  mind  and  inadequacy  of  consideration,  were 
united  with  an  abuse  of  confidence  which  the  one  party  reposed  in  the 

1  G  wynne  v.  Heaton,  1  Bro.  C.  C.  9.  6  Underbill  v.  liorwood,  1  Ves.  2-19. 

2  Coles  v.  Trecothick,  9  Ves.  246.    Gib-        7  1  Mad.  Ch.  Pr.  214. 

eon  v.  Leyes,  6  id.  273.  8  Batty  v.  Lloyd,  1  Vern.  141. 

3  Peacock  v.  Evans,  16  Ves.  512.  B  Clarkson  v.  Ilanway,  2  Pierre  "Wins; 

4  Osgood  v.  Franklin,  2  J.  Cb.  R.  23.  204. 
*  Seymour   v.  Delancy,  3  Co  wen,  516, 

517. 


204  Of  Fraud.  |Ch  3 

other,  the  court  interposed  and  set  aside  the  sab  of  an  annuity  by  „he 
attorney  to  his  client.1 

So  a  purchase  and  repurchase  of  a  legacy,  expectant  on  a  death,  the 
consideration  being  inadequate  and  advantage  taken  of  the  pecuniary 
distress  of  the  party,  the  whole  transaction  was  set  aside,  as  was  also  a 
subsequent  bond  given  as  a  confirmation,  because  given  under  an  idea 
that  the  obligor  was  bound  by  the  former  transaction.2 

So  on  a  bill  for  a  specific  performance  of  a  contract  for  the  sale  of  an 
estate,  it  was  said  that  the  court  was  not  bound  to  decree  a  specific  per- 
formance in  every  case,  where  it  would  not  set  aside  the  contract ;  nor  to 
set  aside  every  contract,  that  it  would  not  order  to  be  specifically  per- 
formed. Under  circumstances  amounting  to  a  breach  of  trust,  inadequacy 
/f  consideration  arising  from  gross  negligence  of  the  agent  and  a  want 
of  due  authority,  the  bill  was  dismissed,  though  the  plaintiff  was  unim- 
peached ;  and  it  was  said  that  no  specific  performance  would  be  decreed 
if  the  party  labored  under  any  surprise  making  it  not  fair  and  honest 
to  call  for  it.3 

These  principles  have  been  often  applied  in  this  country,  by  courts  of 
equity.  Thus  a  pretended  purchaser,  holding  influence  over  the  mini  of 
a  weak  and  credulous  man,  was  not  permitted  to  enjoy  a  contract  gained 
at  an  inadequate  price.4  A  conveyance  obtained  by  children,  from  a 
father,  will  not  be  sanctioned  by  a  court  of  equity,  if  it  appear  to  have 
been  procured  by  an  abuse  of  confidence  reposed  by  him  in  his  children  ; 
who  for  the  purpose  of  procuring  it,  took  advantage  of  his  age,  imbecility 
and  partiality  for  them  ;  the  conveyance  being  also  for  an  inadequate 
consideration.5  So  an  unconscionable  bargain  obtained  by  imposition 
and  fraud,  from  a  weak  or  intemperate  man,  it  was  said  would  be  relieved 
against.6 

It  has  been  shown  under  the  head  of  dealings  between  parties  standing 
to  each  other  in  confidential  or  fiduciary  relations,  with  what  jealousy  the 
transactions  of  the  parties  are  watched,  and  what  circumstances  super- 
added to  the  breach  of  confidence  would  be  seized  on  by  the  court,  in 
order  to  grant  relief.  Though  inadequacy  of  price  will  not  alone  be  a 
ground  for  setting  aside  a  contract,  yet  it  has  been  seen  that  if  the  con- 
tract be  obtained  by  one  standing  in  a  peculiar  relation  of  confidence  to 
the  party  from  whom  it  was  obtained  ;  if  the  latter  be  of  weak  under- 


1  Gibson  v.  Jeyes,  6  Ves.  266.  4  Realty's  Heirs  v.  Murphy,  3  A.  K. 

*  Crowe  v.  Ballard,  1  Ves.  jr.  215.  Marsh.  475. 

1  Mortloek  v.  Buller,  10  Yes.  292.  5  Whelan  v.  Whelan,  3  Cowen  537. 

6  Whipple  v.  McCUu-e,  2  Hoot,  216. 


Ch.  3.]  Surprise.  20.r> 

Standing ;  if  tlicrc  be  misrepresentation,  or  surprise  ;  if  the  latter  he  in 
circumstances  of  great  pecuniary  distress,  a  court  of  equity  will  interfere. 
In  like  manner,  though  -weakness  of  mind  alone,  be  not  enough  to  set 
aside  a  contract,  if  the  party  he  compos  mentis,  yet,  if  there  be  other 
circumstances,  such  as  inadequacy  of  price,  imposition,  surprise,  abuse  of 
confidence  and  the  like,  the  benign  jurisdiction  of  the  court  can  be  suc- 
cessfully invoked.1 

The  term  surprise  does  not  seem  to  have  any  precise,  or  peculiar 
definition  in  a  court  of  equity.  Like  fraud,  it  does  not  admit  of  being 
described  by  its  constituent  parts,  but  is  infinitely  variable.  It  is  defined 
by  Webster,  as  the  act  of  coming  upon  unawares-,  or  of  taking  suddenly 
and  without  preparation.  The  state  of  being  taken  unexpectedly.  This 
is  sufficiently  accurate  for  all  practical  purposes.  On  a  bill  for  a  specific 
performance  of  an  agreement  brought  by  the  vendor  against  the  purchaser 
at  an  auction  sale,  the  agent  of  the  vendor  bid  at  the  sale,  without  any 
previous  intimation  to  the  purchaser,  who  was  ignorant  of  that  fact,  and 
Lord  Kenyon  refused  to  decree  a  specific  execution,  saying  that  the 
court  was  not  bound  to  execute  every  contract,  and  if  there  was  any  sort 
of  surprise,  that  made  it  not  fair  and  honest  to  call  for  an  execution,  he 
would  not  give  the  relief  of  a  specific  performance,  but  leave  the  parties 
at  law.'2  This  was  approved  by  Lord  Eldon.3  In  this  case,  the  word 
surprise  means,  that  an  unexpected  event  occurred  at  the  sale,  without 
the  fault  of  the  purchaser,  and  prejudicial  to  his  interest.  "Whatever 
happens  without  the  agency  or  fault  of  the  party  affected  by  it,  tending 
to  disturb  and  confuse  his  judgment,  or  to  mislead  him,  and  of  which  the 
opposite  party  takes  an  undue  advantage,  is  a  surprise.  It  is  treated  by 
a  celebrated  author  under  the  head  of  mistake;  and  as  analogous  to 
the  misapprehension  of  the  party,  which  has  been  held  a  ground  of 
relief.  But  he  very  properly  observes  that  it  is  not  every  surprise  that 
will  avoid  a  deed  duly  made  ;  nor  is  it  fitting ;  for  it  would  occasion  grcac 
uncertainty;  and  it  would  be  impossible  to  fix  what  is  meant  by  surprise  , 
for  a  man  may  be  said  to-be  surprised  in  every  action  which  is  not  done 
with  so  much  discretion  as  it  ought  to  be.  But  the  surprise  here  intended 
must  be  accompanied  with  fraud  and  circumvention,4  and  like  other  acts 
of  fraud,  must  be  proved,  or  presumed  from  the  facts  and  circumstances 
of  the  case. 


1  Per  Harris,  P.  J.  in  Dunn  v.  Cham-        ■  Mortlock  v.  Buller,  10  Ves.  301. 

I  Barb.  870.  «  1  Fonb.  Eq.  13.  1,  ch.  2,  §  8. 

■  Turning  v.  Morrison,  2  Bro.  C.  C.  326. 


206  Op  Fraud.  [Oh.  & 

Lord  Eldon,  in  one  case,  uses  the  term  surprise  and  mistake,  in  oppo- 
sition to  fraud,  as  grounds  of  relief,1  or  as  ground  of  objection  to  a  bill 
for  specific  performance.  And  in  another  case,  a  conveyance  by  lease 
and  release  and  fine,  was  set  aside  upon  great  inadequacy  of  consid- 
eration, combined  with  misrepresentation  and  surprise  upon  parties 
in  extreme  distress,  ignorant  of  their  interest,  and  not  properly  pro- 
tected.2 

It  is  seldom  that  a  transaction  rests  upon  surprise  alone.  The  equity 
to  be  relieved  from  an  act  occasioned  by  surprise,  is  referable  more  prop- 
erly to  fraud  than  mistake,  though  perhaps  there  is  a  mixture  of  both. 
The  party  who  obtains  an  advantage  from  another,  knowing  him  to  be 
acting  without  deliberation,  and  without  the  counsel  of  friends  ;  or  that 
he  is  acting  upon  an  event  which  has  happened  suddenly  and  unexpect- 
edly, without  time  to  calculate  the  consequences,  is  guilty  of  fraud.  In 
granting  relief  in  such  cases,  the  court  acts  upon  the  same  principles 
which  govern  it  in  vacating  contracts  obtained  by  imposition  and  fraud. 
As  full  assent  is  necessary  to  a  valid  agreement,  if  that  is  prevented  by 
surprise,  and  without  fault  of  the  party,  it  would  seem  to  be  a  fit  case 
for  equitable  relief. 

There  are  numerous  other  cases  where  equity  grants  relief  on  the 
ground  of  actual  fraud,  and  which  are  not  referable  to  either  of  the 
foregoing  heads.  Equity  sometimes  interferes  and  prevents  the  pirating 
of  trade  marks.  The  question,  in  such  cases,  is  not  whether  the  com- 
plainant was  the  original  inventor  or  proprietor  of  the  article  made  by 
him,  and  upon  which  he  now  puts  his  trade  mark,  nor  whether  the  article 
made  and  sold  by  the  defendant,  under  the  complainant's  trade  mark,  is 
an  article  of  the  same  quality  or  value.  But  the  court  proceeds  upon  the 
ground  that  the  complainant  has  a  valuable  interest  in  the  good  will  of 
his  trade  or  business;  and  that  having  appropriated  to  himself  a  partic- 
ular label  or  sign,  or  trade  mark,  indicating  that  the  article  is  manufac- 
tured or  sold  by  him.  or  by  his  authority,  or  that  he  carries  on  busi 
at  a  particular  place,  he  is  entitled  to  protection  against  any  other  per- 
•  lio  attempts  to  pirate  upon  the  good  will  of  the  complainant's 
Is,  or  customers,  or  of  the  patrons  of  his  trade  or  business,  by 
using  his  trade  mark  without  his  consent.3 

This  same  principle  has  been  extended  to  restrain  the  publication  of 

1  The  Marquis  of  Townshend  v.  Stan-  3  Patridge  v.  Menck,  2  Barb.  Ch.  101  ; 
groom,  6  Ves.  339.  S.  C,  2  Sandf.  Ch.   R.  622.     Taylor  s. 

8  Pecket  v.  Lagoon,  14  Ves.  215,  Carpenter,  11  Paige,  292. 


Oh.  3.1       Fraud  on  Powers.     Illusory  Appointment.  207 

a  newspaper,  when  the  name  of  the  complainant's  newspaper  was  used 
dv  the  defendant,  in  such  a  manner  as  to  be  calculated  to  deceive  or  mis- 
lead the  public,  and  to  induce  them  to  suppose  that  the  paper  printed  by 
the  defendant  is  the  same;'as  that  which  was  previously  published  by 
the  complainant ;  and  thup  to  injure  the  circulation  thereof.1 

The  same  principle  was  applied  by  Lord  Langdale,  who  restrained  a 
defendant  from  running  an  omnibus  having  upon  it  such  names,  words 
and  devices  as  to  form  a  colorable  imitation  of  the  words,  names  and 
devices  on  the  omnibuses  of  the  plaintiff.2 

Numerous  other  cases  of  a  similar  character  are  found  in  the  books, 
but  the  consideration  of  them  more  appropriately  belongs  to  a  subsequent 
head,  that  of  preventing  fraud  by  injunction  and  otherwise.  We  will 
notice  the  ease  of  fraud  on  powers,  and  illusory  appointments,  and  then 
proceed  to  some  cases  more  properly  referable  to  constructive  fraud 
than  moral  fraud. 

A  party  will  not  be  allowed  to  execute  a  power  for  his  own  benefit. 
Thus  in  Lord  Landank's  case,  a  father  having  a  power  of  appointment, 
and  thinking  one  of  his  children  was  in  a  consumption,  appointed  in  favor 
of  that  child ;  and  the  court  was  of  opinion  that  the  purpose  was  to  take 
the  chance  of  getting  the  money  as  administrator  of  that  child.3  That 
was  a  fraud  upon  other  persons  having  an  interest  in  the  execution  of  the 
power.  But  the  court  will  not  act  against  the  title  upon  the  mere  suspi- 
cion that  a  transaction  was  of  that  nature.4 

The  subject  of  the  due  execution  of  a  power  of  appointment,  and 
wl  •  ther  the  disposition  made,  was  or  was  not  within  the  power,  or  whether 
part  of  the  subject  being  appointed  to  one  of  the  objects  was  so  insignifi- 
cant as  to  be  considered  by  the  court  as  illusory,  caused  in  former  times 
more  doubt  and  difficulty  in  the  mind  of  judges  thantoost  others.  The 
remarks  of  the  master  of  the  rolls  in  an  important  case,  explain  the  gen- 
eral nature  of  this  subject,  and  the  course  of  the  court.5  In  a  later  case,8 
Sir  William  Grant  strongly  questioned  the  propriety  of  the  interference 
arts  of  equity  in  matters  of  this  kind,  and  said  that  he  found  it  im- 
possible to  understand  how  the  question,  whether  a  power  was  well  or  ill 
executed,  could  receive  different  interpretations  in  different  courts.  As 
the  doctrine  is  now  abolished  in  England,  it  seems  unnecessary  to  review 

1  Bell  v.  Locke,  8  Paige,  75.    Snowden  4  Id.  4G7. 

Hopkins'  R.  347.  '  Vanderzee  v.  Adorn,  4  Ves.  784, 785. 

■  Enott  v.  Morgan,  2  Keene,  213.  c  Butcher  v.  Butcher,  9  Yes.  382. 
'  McQueen  v.  Farquar,  1 1  Ves.  470. 


208  Of  Fraud.  [Ch.  3 

the  cases,  especially  as  the  revised  statutes  of  this  state  have  introduced 
a  principle  which  effectually  abrogates  it  with  us.1  By  the  revised  stat- 
ures it  is  declared  that  -when  a  power  is  directed  to  be  made  to,  or  among, 
or  between  several  persons,  without  any  specification  of  the  share  or  sum 
to  be  allotted  to  each,  all  the  persons  designated  shall  be  entitled  to  an 
equal  proportion.  But  when  the  terms  of  the  power  import  that  the  es- 
tate or  fund  is  to  be  distributed  between  the  persons  so  designated,  in 
such  manner  or  proportions  as  the  trustee  of  the  power  may  think  proper, 
the  trustee  may  allot  the  whole  to  any  one  or  more  of  such  persons,  in 
exclusion  of  the  others.  The  object  of  these  sections,  the  revisers  remark 
in  their  notes,  (3R.  S.  591,  2d  ed.)  was  to  prevent  the  interference  of 
equity  in  correcting  what  are  called  illusory  appointments — a  jurisdic- 
tion very  questionable  in  itself,  and  of  which  the  limits  were  uncertain. - 

It  has  already  been  said  that  it  is  essential  to  every  contract  that  there 
he  the  free  assent  of  the  parties  ;  and  that  consent  supposes  a  physical 
power,  a  moral  power,  and  a  serious  and  free  use  of  both.  Hence  agree- 
ments entered  into  under  duress  are  void  at  law  and  believable  in  equity. 

Duress  is  of  two  kinds  ;  duress  of  imprisonment  and  duress  per  minas 
Duress  of  imprisonment  is  defined  by  the  older  cases  to  be  the  illegal  re 
straint  of  liberty.3  And  duress  per  minas  is  the  fear  of  loss  of  life,  oj 
the  fear  of  mayhem,  or  loss  of  limb.  And  this  fear  must  be  upon  suffi- 
cient reason.  A  fear  of  battery,  or  being  beaten,  though  never  so  well 
'grounded,  is  no  duress  ;  neither  the  fear  of  having  one's  house  burned,  or 
one's  goods  taken  away  and  destroyed ;  because  in  these  cases  should  the 
threat  be  performed,  a  man  may  have  satisfaction  by  recovering  equiva- 
lent damages.4  The  modern  cases  hold  that  there  may  be  duress  of  im- 
prisonment even  when  the  imprisonment  is  under  legal  process,  and  that 
to  constitute  duress  per  minas,  it  is  not  essential  that  the  party  be  threat- 
ened with  loss  of  life  or  limb,  or  with  mayhem  ;  but  it  is  enough  if  he  acts 
from  fear  excited  by  threats  of  illegal  imprisonment.5 

It  is  in  analogy  to  this  principle  that  a  court  of  equity  watches  with  ex- 
treme jealousy  all  contracts  made  by  a  party  under  the  pressure  of  great 

1  I  R.  S.  734,  §  98.  for  a  note  obtained  under  duress,  will  not 

2  See   remarks   of  Ch.    Walworth   in    be  set  aside  in  equity. 

"Walker  v.  Devereaux.  4  Paige,  249,  250.         6  Foshay    v.    Ferguson,    5    II ill,    154. 

3  1  Black.  Com.  139.  Thompson   v.  Lockwood,  15  J.  R.  25Q. 
*  Id.  133.     2  Inst.  483.     Co.  Lit.  253,  b.     Champlain  v.  The  People,  2  Comst.  83. 

See  note  £.  to  Cole  v.  Gibbons,  3  P.  tins.    Evans  v.  1  'egleys,  2  Wend.  243.     "Catkins 
294,  Showing  that  a  bond  given  freely,    v.  Baird,  6  Mass.  R.  536.     Richardson  v 

Duncan,  3  J*.  U.  508. 


Ch.  3.J  Underhand  Agreements.  '200 

pecuniary  distress  ;  and  contracts  made  with  persons  who  are  in  a  condi- 
tion to  exercise  a  controlling  influence  over  the  -will  or  conduct  of  others. 
Some  of  them  have  already  been  considered  under  their  proper  heads. 
and  others  perhaps  are  referable  to  cases  of  constructive  fraud. 

Contracts  with  infants  or  femes  covert  are  also  relievable  on  the  ground 
of  incapacity  to  contract,  or  the  constraint  under  which  they  are  placed. 


SECTION  IAr. 

OP  CONSTRUCTIVE,   OR   IMPLIED  FRAUD. 

In  this  chapter,  we  have  hitherto  treated  of  cases  having  their  origin 
in  actual  moral  fraud,  and  relievable  under  that  head,  and  of  cases  of  a 
mixed  character,  arising  out  of  the  confidential  or  fiduciary  relation  of  the 
parties,  and  which  are  watched  with  peculiar  jealousy  by  a  court  of  equity, 
from  their  great  temptation  to  abuse,  and  which  are  often  mingled  with 
transactions  partaking  more  or  less  of  actual  fraud,  either  towards  third 
persons,  or  one  or  more  of  the  parties  themselves.  And  we  have  also 
treated  of  cases  where  an  unconscientious  advantage  has  been  taken  of 
the  mental  weakness  of  a  party.  We  shall  now  proceed  to  the  considera- 
tion of  another  class  of  cases,  relievable  in  equity,  either  on  the  ground 
of  their  being  against  public  polic}T,  or  the  provisions  of  some  statute. 
These  cases,  too,  sometimes  embrace  all  the  elements  of  moral  fraud. 
But,  in  general,  the  design  is  not  to  deceive  the  individual  with  whom 
the  contract  is  made,  but  to  gain  some  advantage  inconsistent  with  fair 
dealing  or  the  rights  of  third  persons.  These  acts,  from  their  tendency 
to  defraud,  are  forbidden  by  law,  though  the  motive  of  the  parties  in  the 
particular  case,  be  not  shown  to  be  fraudulent  and  corrupt.  They  are 
usually  denominated,  by  the  courts,  constructive  or  implied  frauds. 

The  first  of  this  class  of  constructive  frauds  which  we  will  notice,  are 
what  are  usually  denominated  underhand  agreements.  These  are  agree- 
ments by  which  a  creditor  who  has  executed  a  deed  of  composition  with 
an  insolvent  debtor,  reserves  to  himself  a  greater  advantage  than  the 
other  creditors  would  have  under  the  deed.  If  this  be  done  without  the 
knowledge  or  consent  of  the  other  creditors,  it  is  a  fraud  upon  them,  and 
will  be  set  aside.'     So  a  bond  to  one  creditor,  to  secure  the  deficiency  of 

1  MawBOD  v.  Stock,  C  Ves.  300. 
Eq.  Jur.  27 


210  Of  Fraud.  [Ch.  3 

composition,  not  communicated  to  the  others,  is  bad.  But  if  taken  with 
their  privity  and  consent,  is  not  open  to  objection.1  Between  the  parties 
to  the  transaction,  there  is  no  design  by  the  one  to  defrrvud  the  other. 
But  its  tendency  is  to  defraud  the  other  creditors,  and  hence,  on  the 
ground  of  public  policy,  it  is  condemned  both  at  law  and  in  equity.2 

The  invalidity  of  marriage  brocage  bonds  rests  upon  the  same  prin- 
ciple of  public  policy.  It  is  laid  down  as  a  rule  in  the  civil  law,  that 
marriage  ought  to  be  free,  and  the  same  policy  has  obtained  in  equity. 
And  therefore  in  case  of  a  bond  in  common  form  for  payment  of 
money,  but  proved  that  the  agreement  was,  that  the  obligor  should  marry 
such  a  man,  or  should  pay  the  money  due  on  the  bond,  the  court  will  de- 
cree this  bond  to  be  canceled  as  being  contrary  to  the  nature  and  design 
of  marriage,  which  ought  to  proceed  from  free  choice,  and  not  from  any 
compulsion.3  Thus,  when  it  appeared  that  the  marriage  was  brought 
about  without  the  consent  of  the  young  woman's  parents,  who  were  then 
living,  the  lord  chancellor,  for  that  reason  alone,  on  a  bill  filed  to  be  re- 
lieved against  a  marriage  brocage  bond,  decreed  the  bond  to  be  delivered 
up,  terming  it  a  sort  of  kidnapping;  and  said  there  was  a  material  dif- 
ference, where  the  parties  were  at  their  own  disposal,  and  when  their 
parents  were  living ;  though  such  a  bond  was  in  no  case  to  be  counte- 
nanced.4 So,  whenever  a  father  or  mother  or  guardian  insists  upon  a 
private  gain,  or  security  for  it,  and  obtains  it  of  the  intended  husband,  it 
shall  l)e  set  aside  ;  for  the  power  of  a  parent  or  guardian  ought  not  to  be 
made  use  of  to  such  purposes.  You  shall  not  have  my  daughter,  unless 
you  do  so  and  so,  is  to  sell  children  and  matches.  And  these  contracts 
with  the  father  seem  to  be  of  the  same  nature  with  brocage  bonds,  but  of 
more  mischievous  consequences,  as  that  which  would  happen  more  fre- 
quently ;  and  it  is  now  a  settled  rule,  that  if  the  father,  on  the  marriage 
of  his  son,  takes  a  bond  of  the  son  to  pay  him  so  much,  it  is  void,  being 
done  by  coercion,  while  he  is  under  the  awe  of  his  father.  Nor  will 
the  court  only  decree  a  marriage  brocage  bond  to  be  delivered  up,  but  a 
gratuity  of  fifty  guineas  actually  paid  to  be  refunded  \  for  such  bond  is 

1  Jackman  v.  Mitchell,  13  Yes.  586.  3  1  Fonb.  Eq.  B.  1,  ch.  4,  §  11. 

3  Yeoman  v.  Chatterton,  9  J.  R.  295.  4  Drury  v.  Hook,  1  Yern.  412.  Eey 
Payne  v.  Eden,  3  Caines'  R.  213.  Wig-  v.  Bradshaw,  2  id.  102.  LamTee  v.  Han- 
gins  v.  Bush,  12  J.  R.  306.  Tuxbury  v.  man,  2  id.  499.  Duke  of  Hamilton  v. 
Miller,  19  id.  311.  Leicester  v.  Rose,  Mohun,  2  id.  652.  Keaf  v.  Allen,  id.  588. 
4  East,  372.  Child  v.  Danbridge,  2  Yern.  Toche  v.  Atkins,  1  id.  451.  Gale  v.  Lin- 
71.  Small  v.  Brackly,  2  id.  602.  1  Atk.  go,  id.  475.  Kemp  v.  Coleman,  1  Salic 
105.  156.     Baker  v.  White,  2  Yern.  215. 


Ch.  3.}  Marriage  Brocage  Bonds.  211 

in  no  case  to  be  countenanced.  And  a  bond  to  procure  marriage,  though 
between  persons  of  equal  rank  and  fortune,  is  void,  as  being  of  dangerous 
consequence.1 

The  principles  contained  in  the  foregoing  extract  are  supported  by  the 
American,  as  well  as  by  the  English  cases.  Thus,  in  one  case.  Chief 
Justice  Parsons  says  that  marriage  brocage  bonds,  which  are  not  fraudu- 
lent on  either  party,  are  yet  void,  because  they  are  a  fraud  on  third  per- 
sons, and  are  a  public  mischief,  as  they  have  a  tendency  to  cause  matri- 
mony to  be  contracted  on  mistaken  principles,  and  without  the  advice,  of 
friends ;  and  they  are  relievable  against  as  a  general  mischief,  for  the 
sake  of  the  public.2 

On  the  same  principle  of  public  policy  a  secret  settlement  by  a  woman 
on  the  eve  of  her  marriage,  and  in  contemplation  of  that  event,  is  fraudu- 
lent and  void  against  the  husband.3  Agreements  on  marriage,  are  very 
different  from  common  contracts  ;  and  all  underhand  agreements,  deroga- 
tory therefrom,  are  in  fraud  of  the  marriage,  and  void.4 

The  good  faith  which  is  required  in  all  contracts  is  eminently  neces- 
sary in  a  contract  so  important  both  to  the  parties  and  the  public,  as  that 
of  marriage.  Although  the  court  cannot,  after  the  marriage  has  taken 
place,  fully  restore  the  parties  to  the  condition  in  which  they  were  before 
the  marriage,  it  can  set  aside  conveyances  made  in  fraud  of  the  marriage. 
An  unmarried  woman  has  a  right  to  dispose  of  her  property  as  she  pleases, 
and  as  a  conveyance  made  by  her,  immediately  before  her  marriage,  is 
p  ri 'ma  facie  good,  it  is  to  be  impeached  only  by  the  proof  of  fraud.  This 
fi  and  may  be  accomplished  by  false  representations,  or  by  undue  conceal- 
i)  cut.  A  widow  having  children  by  a  former  husband,  and  contemplating 
marriage,  is  performing  a  moral  duty  if  she  makes  provision  out  of  her 
property,  for  such  children.  But  in  performing  this  duty,  she  has  no 
light  to  act  fraudulently  towards  her  second  husband. 

If  a  woman,  entitled  to  property,  enters  into  a  treaty  for  marriage,  and 
during  the  treaty  represents  to  her  intended  husband  that  she  is  so 
entitled,  that  upon  the  marriage,  he  will  become  entitled  jure  muriti, 
and  if  during  the  same  treaty,  she  clandestinely  conveys  away  the  prop- 
erty, in  such  manner  as  to  defeat  his  marital  right  and  secure  to  herself 
the  separate  use  of  it,  and  the  concealment  continues  till  the  marriage 
takes  place,  there  can  be  no  doubt  that  a  fraud  is  thus  practiced  on  the 
husband,  and  he  is  entitled  to  relief.* 

'  1  Foub.  Eq.  B.  1,  ch.  4,  §  11 ;  and  see  4  Per  Smith,  J.,  Lessee  of  Whiteliih  v. 

rases  under  last  note.  Dorsay,  2  Yeates,  109. 

■  Doynton  v.  Hubbard,  7  Mass.  E.  118.  6  Per  Lord   Langdale,    in    England  v 

1  Linker  v.  Smith,  4  Wash.  C.  C.  22±.  TWns,  2  Beavan,  528. 


212  Of  Fraud.  [Ch.  3 

The  equity  in  cases  of  tins  nature  depends  upon  the  peculiar  circum- 
stances of  each  case,  as  bearing  upon  the  question,  whether  the  facta 
proved  do  or  do  not  amount  to  sufficient  evidence  of  fraud  practiced  on 
the  husband.  It  is  not  doubted  that  proof  of  direct  misrepresentation, 
or  of  willful  concealment  with  intent  to  deceive  the  husband,  would  entitle 
him  to  relief;  but  it  was  insisted  that  mere  concealment  was  not  in  such 
case  any  evidence  of  fraud ;  and  if  a  man,  without  making  any  inquiry 
as  to  a  woman's  affairs  and  property,  thinks  fit  to  marry  her,  he  must 
take  her  and  her  property  as  he  finds  them,  and  has  no  right  to  complain, 
if,  in  the  absence  of  any  care  on  his  part,  she  has  taken  care  of  herself 
and  her  children  without  his  knowledge.1 

This  proposition,  however,  said  Lord  Langdale  in  the  same  case,  cannot 
be  admitted  as  stated ;  and,  cleai'ly.  a  woman  in  such  circumstances  can 
only  reconcile  all  her  moral  duties  by  making  a  proper  settlement  on 
herself  and  her  children,  with  the  knowledge  of  her  intended  husband.2 

Although  the  husband  has  no  notice  of  the  existence  of  property  of 
the  wife,  upon  the  marriage,  and  is,  therefore,  not  in  fact  disappointed  in 
not  receiving  any,  yet  if  she  had  property  before  the  consummation  ( f 
the  marriage,  and  made  a  settlement,  concealing  from  him  both  her  ri^ht 
to  the  money  and  the  existence  of  the  settlement,  it  is  a  fraud  upon  his 
marital  rights ;  and  a  court  of  equity,  even  ten  years  after  her  death,  in 
one  case,  relieved  against  such  a  settlement  and  ordered  the  money  paid 
to  the  husband.3 

It  is  a  principle  which  has  long  prevailed  both  at  law  and  in  equity, 
that  if  a  representation  is  made  upon  the  circumstances  of  a  person  about 
to  form  a  connection  in  marriage,  and  that  representation  is  of  such  a 
nature,  that,  if  not  made  good,  or  if  varied,  it  will  materially  affect  the 
circumstances  in  life  of  that  party,  courts  both  of  law  and  equity,  will 
hold  the  party  bound  to  make  good  that  representation,  even  at  the  suit 
of  individuals  concerned  in  fraudulently  defeating  such  a  representation 
upon  which  that  connection  was  proceeding.4 

Upon  this  principle,  when  upon  a  marriage  of  a  son  the  father  made  a 
settlement  of  an  annuity  on  the  intended  wife  in  full  of  her  jointure,  and 
in  lieu  of  dower,  and  the  son  secretly  gave  a  bond  of  indemnity  of  the 
same  date,  to  his  father,  against  the  annuity,  the  bond  was  held  to  be  a 
fraud  upon  the  marriage  contract,  and  was  set  aside.     The  open  agree- 

1  Per  Lord  Langdale,  in  England  v.  wellin  v.  Cobbold,  19  Eng.  L.  andEq.  4S, 

Downs.  2  Beavan,  528.  17  Jurist,  448. 

-  Id.  529.  4  De  Manneville  v.  Crompton,  1  Ves  it 

*  Gutlard  v.  Snow,  1  Russ.  485.    Le-  Beanie,  355. 


Ch.  3.J  Marriage  Brocage  Bonds.  213 

rnent  put  the  parties  contracting  marriage,  in  one  situation,  and  the  pri- 
vate agreement  put  them  in  another  and  worse  situation.  By  the  open 
agreement,  the  son  apparently  finds  the  means  of  providing  for  his  wife 
without  resorting  to  his  own  fortune  ;  whereas  the  effect  of  the  private 
agreement  is  to  throw  the  burden  entirely  upon  his  own  fortune  ;  by 
which  he  is  to  that  extent  prevented  from  providing  for  his  family  as  he 
otherwise  might.  This  was  just  as  much  a  fraud  upon  the  marriage 
contract,  as  if  receiving  a  fortune,  he  returns  part  of  it.  His  capacity 
for  providing  for  his  family  is  equally  diminished  in  both  cases.1 

The  same  principle  arose  in  another  case,  when  the  brother,  on  a  treaty 
of  marriage  of  his  sister,  let  her  have  £160  privately,  that  her  fortune 
might  appear  to  be  as  much  as  was  insisted  on  by  the  other  party,  and  took 
the  bond  of  the  sister  to  repay  it,  the  bond  was  relieved  against  after 
the  death  of  the  son  and  the  sister  who  survived  her  husband.2 

The  foregoing  were  cases  where  the  fraud  was  perpetrated  by  one  of 
the  parties  to  the  settlement.  But  the  principle  is  applicable  to  a  stran- 
ger who  interferes  in  the  matter  with  a  material  concealment,  misleading 
one  of  the  parties.  Thus,  where  a  party  holding  a  bond  against  a  man 
about  forming  a  treaty  of  marriage,  at  the  request  of  the  latter,  concealed 
the  existence  of  the  same  from  the  wife's  father,  equity  restrained  the  cred- 
itor, by  injunction,  from  enforcing  his  debt,  although  it  did  not  appear 
that  there  was  any  actual  stipulation  on  the  part  of  the  wife's  father,  in 
respect  of  the  amount  of  the  intended  husband's  debts.3 

As  contracts  of  this  nature  are  avoided  on  reasons  of  public  inconven 
ience,  they  do  not  admit  of  subsequent  confirmation  of  the  party.4 

Equity,  it  is  said,  abhors  underhand  agreements  in  cases  of  marriage, 
and  perhaps  this  may  be  the  only  instance  in  equity,  said  the  master  of 
the  rolls,  when  a  person,  though  particeps  criminis,  shall  yet  be  allowed 
to  avoid  his  own  acts.5  In  general,  but  not  always,  courts  of  equity  act 
upon  the  maxim,  in  pari  delicto  potior  est  conditio  defendentis,  et  jiossi 
dentis.  But  in  cases  where  relief  is  sought  on  the  ground  that  the  agree- 
ment  or  transaction  is  against  public  policy,  the  circumstance  that  the 
plaintiff  is  particeps  criminis,  is  not,  in  equity,  controlling.  The  public 
interest  is  the  paramount  consideration  in  these  cases,  and  that  can  only 

1  Palmer  v.  Native,  11  Yes.  184.  480.     Dezell  v.  Odell,  3  Hill,  215.     Pres- 

2  Gale  v.  Lindo,  1  Vern.  475.  Lainlee  byterian  Congregation  of  Salem  v.  Wil- 
7.  Hanman,  2  id.  499.  liams,  9  Wend.  147.    Pierpont  v.  Barn* 

'  Neville  v.  Wilkinson,  3  P.  'Wins.  75,  ard,  5  Barb.  304. 

note.     Tbe  dcitiine  of  estoppel  in  pais,  4  Shirley  V.  Martin,  3  P.  Wins.  75,  note. 

is  applicable  to  this  kind  of  frauds.     See  5  Roberts  v.  Roberts,  3  id.  74. 
Wettand  Cadal  Co.  V.  Hathaway,  8  Wend. 


214  Of  Fraud.  [Ch.  % 

be  attained  through  the  party.  It  applies  not  only  to  agreements  in  ro- 
straint  of  marriage,  but  to  all  others  falling  within  the  like  reason,  and 
when  public  policy  requires  the  agreement  should  be  repudiated.1 

It  is  on  the  principle  of  public  policy  that  contracts  in  restraint  of  mar- 
riage are  void,  both  at  law  and  in  equity.  On  this  ground  a  promise  by 
A.  to  B.  to  marry  her  if  he  marries  any  body  is  void.2  Such  promise, 
without  a  reciprocal  obligation  on  the  part  of  the  promisee,  becomes,  at 
the  option  of  the  promiser,  an  engagement  not  to  marry  at  all.  In  like 
manner  a  wagering  contract  that  the  plaintiff  would  not  marry  within  six 
years,  was  held  to  be  prima  facie  in  restraint  of  marriage,  and  therefore 
void.3  And,  in  another  case,  an  agreement  by  a  man  not  to  marry  with 
any  person  but  the  promisee,  and  if  he  did,  that  he  would  pay  one  thou- 
sand dollars,  within  three  months  after  he  should  so  marry  another,  was 
held  to  be  in  restraint  of  marriage  and  illegal  and  void.*     Though  there 

O  CD  O 

may  be  a  difference  in  degree  between  the  restraint  of  a  first  marriage  and 
a  restraint  of  a  second  marriage,  yet  the  principle  is  the  same.,  and  a  bond 
given  in  restraint  of  a  second  marriage,  has  been  relieved  against  in  equity.6 
And  when  mutual  bonds  were  entered  into  (without  the  knowledge  of 
their  friends,)  between  a  man  and  woman  of  suitable  age,  to  marry  each 
other  at  the  expiration  of  thirteen  months,  and  there  was  no  actual  fraud 
between  the  parties,  Lord  Hardwicke  relieved  against  the  bond  on  public 
and  general  considerations,  and  as  a  fraud  on  the  father.6  The  objection  to 
contracts  of  this  kind,  he  said,  is,  that  the  parents  and  friends  of  one  of 
the  parties  are  deceived  thereby,  and  they  tend  to  encourage  disobedience, 
and  operate  as  a  fraud  on  the  parents.7 

'Douglass,  697,   note.     Yan  Dyck  v.  ing  was  at  law,  and  the  authorities  on  the 

Hewett,  1  East,  96.     Howson  v.  Hancock,  subject    are   well    considered.     Equity, 

8  D.  &  E.  575.     Osborne  v.  Williams,  18  though  it  follows  the  law,    administers 

Yes.  379.     1  Fonb.  Eq.  B.  1,  ch.  4,  §4,  the  same  doctrine  upon   more  enlarged 

and  notes.     MeCullum  v.  Gourlay,  8  J.  principles.     1  Fonb.  Eq.  B.  1,  ch.  2,  §  13, 

E.  147.     O'Malley  v.  Reese,  6  Barb.  658.  and  notes.    Boyd  v.  Dunlap,  1  J.  Ch.  R. 

Morgan  v.  Groff,  5  Denio,  364  ;   disap-  4S2.     Sands  v.  Codwise,  4  John.  R.  536. 

proved  in  S.  C,  4  Barb.  528.     Like  v.  s  Conrad  v.  Williams,  6  Hill,  445. 

Thompson,  9  id.  315.     Watts  v.  Brooks,  5  Hartley  v.  Eice,  10  East,  22. 

3  Yes.  jr.  612.     Arden  v.  Patterson,  5  *  Lowe  v.  Peers,  Burrows,  2225. 

J.  Ch.  R.  49.     The  distinction  taken  by  5  Baker  v.  White,  2  Verm.  215. 

Paige,  J.,  in  Morgan  v.  Groff,  4  Barb.  527,  s  Woodhonse  v.  Shipley,  2  Atk.  5?5, 

is,  that  the  action  will  be  sustained,  when  it  539. 

provides  in  disaffirmance  of  the  contract,  Id.     There  does  not  seem  to  be  any 

and  on  the  ground  that  it  is  void,  and  seels  objection,   in   a   reciprocal    contract  to 

to  prevent  the  defendant  from  retaining  marry,  that  the  consummation  of  the  con- 

the  oenefit  which  he  has  derived  from  an  tract  is  to  be  deferred  to  a  future  day. 

unlawful  act.    The  case  he  was  consider-  Such   contract  made  in   good  faith  is. 


Ch.  3.]  Conditions  in  Restraint  of  Marriage.  'lib 

The  foregoing  are  cases  where  the  contracts  were  made  by  the  parties. 
But  the  principle  of  public  policy  which  renders  such  contracts  void,  has  a 
wider  scope  than  the  mere  action  of  the  parties  themselves.  Conditions  in 
restraint  of  marriage  may  be  imposed  by  others,  in  connection  with  leg- 
acies or  other  gifts,  and  as  these  are  of  no  unfrequent  occurrence,  and 
form  a  subject  on  which  numerous  decided  cases  may  be  found,  it  may  be 
expedient  to  take  a  cursory  glance  at  the  rules  by  which  they  are  gov- 
erned. The  subject  will  be  resumed  in  a  subsequent  part  of  this  treatise, 
when  we  come  to  speak  of  legacies  generally. 

By  the  doctrine  of  the  civil  law,  which  seems  at  one  time  to  have  been 
adopted  by  the  English  ecclesiastical  courts,  and  in  a  great  manner  by 
their  courts  of  equity,  all  conditions  in  restraint  of  marriage  were  regard- 
ed as  illegal,  and  legacies  were  discharged  of  such  conditions,  whether 
precedent  or  subsequent.1  But  the  ancient  rule  has  been  greatly  relaxed 
in  modern  times  ;  and  it  is  now  settled  that  conditions  which  do  not  directly 
or  indirectly  import  an  absolute  injunction  to  celibacy  are  valid.2  Thus, 
conditions  restraining  marriage  under  twenty-one,  or  other  reasonable  age, 
without  consent  of  executors,  guardians,  &c.,3  or  requiring  or  prohibiting 
marriage  with  particular  persons,  and  the  like,  are  valid  conditions. 

It  is  impossible  to  reconcile  all  the  cases  on  the  subject  in  question  ;  but 
the  better  opinion  seems  to  be  that  a  condition  in  restraint  of  marriage  with- 
out consent,  under  the  age  of  twenty-one,  or  other  reasonable  age,  is,  like  a 
condition  in  restraint  of  litigating  the  will,  regarded  as  a  declaration  of 
the  testator  in  terrorem  merely,  if  there  be  no  disposition  over ;  and 
whether  precedent  or  subsequent,  is  inoperative  for  the  vesting  or  divest- 
ing of  the  legacy.4 

But  if  there  be  a  direction,  that,  in  the  event  of  a  breach,  or  non-per- 
formance of  such  condition,  the  legacy  shall  go  over  to  another  legatee, 
the  condition  is  valid  ;  for  the  court  is  bound  to  protect  the  interest  of  the 
party  in  whose  favor  the  ulterior  limitation  is  made.5     A  mere  residuary 

doubtless,  valid.    It  is  only  when  so  made  Hardwioke.      Malcom    v.    O'Callaghan, 

as  to  work  a  fraud  on  the  parents  and  2  Madd.  Ch.  R.   353,  by   Sir  T.  Palmer, 

friends,  that  it  is  objectionable.    Lowe  v.  1   Atk.   382,   n.   1.     Harvey   v.   Aston, 

Peers,  Burr.  2229,  2230.     Key  v.  Brad-  id.  301.     1  Fonb.  Eq.  ch.  4,  §  10,  note  q. 

Bhaw,  2  Vera.  102.    But  long  engage-  The  origin  of  the  doctrine  on  this  sub- 

ments  are  not  to  be  encouraged.  ject  is  traced  by  Lord  Roslyn,  in  Stack- 

1  Scott  v.  Tyler,  2  Dick.  720.  pole  v.  Beaumont,  3  Yes  90  et  seq.  and 

1  Id.     2  Wills.  Exr.  791.     Bac.   Abr.  by   Lord    Thnrlow,    in   Scott    v.    Tyler, 

tit.  Legacy,  !'.  of  Conditional  Legacies.  2  Dick.  710  to  721. 

.ekpolev.  Beaumont,  3  Yes.  89.  Clif-  s  Stratton   v.   Grimes,    2   Yern.   357. 

ford  v.Beaumont,  4  Russell's Ch.Cas. 325.  "Wheeler  v.  Bingham,  2  Atk.  304. 
4  Iiayner  v.  Mvtin,  3  Atk.  331    by  Ld. 


'216  Of  Fraud.  [Ch.  3. 

bequest  is  not  such  a  limitation  over,  unless  the  legacy  be  directed  in  case 
of  breach  of  the  condition  to  fall  into  the  residue.1  Different  reasons 
have  been  assigned  for  this  rule.  But  the  most  satisfactory  one  is  that 
assigned  by  Sir  William  Grant,  in  Lloyd  v.  Branten,  that  the  bequest  over 
affords  a  manifestation  of  the  intention  that  the  condition  was  not  merely 
in  tcrrorem,  but  that  the  legatee  over  should  take  in  that  event. 

A  condition  in  restraint  of  marriage  generally,  is  undoubtedly  void,  as 
against  public  policy,  whether  there  be  a  devise  over  or  not.2 

A  condition  to  marry  with  consent  is  a  lawful  condition,  and  when  it  is 
made  a  precedent  condition,  nothing  vests  until  it  is  performed.3 

The  foregoing  is  enough  for  the  present  purpose.  The  subject  of  con- 
ditional legacies  will  be  treated  under  its  appropriate  head.4 

Although  the  defense  of  usury  is  available  at  law,  yet  there  are  nume 
rous  cases  where  the  interposition  of  a  court  of  equity  is  essential  to 
complete  relief,  especially  if  discovery  is  necessary.  If  a  lender  on  such 
contract  seeks  to  enforce  his  securities  in  equity,  and  the  borrower  sets 
up  usury  as  a  defense  and  proves  it,  the  securities  will  be  declared  void, 
and  ordered  to  be  delivered  up  and  canceled.3 

On  the  principle  that  he  who  seeks  equity  must  do. equity,  it  was  the 
invariable  practice  of  the  court  of  chancery,  unless  when  its  practice  was 
controlled  by  some  positive  statute,  to  require  of  the  party  seeking  to  be 
relieved  from  a  usurious  contract,  to  bring  into  court  and  offer  to  pay  the 
money  actually  lent,  with  lawful  interest  thereon.8 

The  early  New- York  cases,  indeed  all  prior  to  the  revision  of  1830, 
were  made  under  the  act  for  preventing  usury,  of  the  8th  of  February, 
1787, 7  and  which  was  framed  from  the  English  statutes  upon  the  same 
subject.  The  doctrine  that  he  who  asks  relief  in  a  court  of  equity  must 
himself  do  equity,  was  applied  to  a  complainant  seeking  to  set  aside  a 
usurious  security  in  the  court  of  chancery.  The  subsequent  cases  in 
New- York  are  not  intelligible  without  a  reference  to  the  changes  intro- 
duced at  different  times,  by  our  legislation  on  this  subject.  The  eighth 
section  of  the  title  of  the  revised  statutes,  "  Of  the  interest  of  money,'"5 
is  in  these  words :    "  Whenever  any  borrower  of  any  money,  goods  or 

1  2  Atk.  368.  Lloyd  v.  Branten,  6  Rogers  v.  Eathbun,  1  J.  Ch.  R.  367. 
8  Meriv.  118.  Tupper  v.  Powell,  id.  439.    Morgan  v. 

2  Bao.  Abr.  tit.  Legacy,  F.  Scbermerhorn,  1  Paige,  544.  1  Fonb.  Eq 

3  Harvey  v.  Aston,  1  Atk.  379.  B.  1,  ch.  1,  §  3,  note  h. 

4  See  post,  "  Conditional  Legacies."  '  1  R.  L.  64. 

*  Fanning  v.  Dunham,  5  J.  Ch.  E.  122,       8  1  E.  S.  773, 


I 


i.  O.J  Usury.  217 


ti  ags  in  action,  shall  file  a  bill  in  chancery  for  a  discovery  of  the  money, 
g<  Is  or  things  in  action,  taken  or  received,  in  violation  of  either  of  the 
f  n  ;oing  provisions,  it  shall  not  be  necessary  for  him  to  pay,  or  offer  to 
p;v  u»y  interest  whatever  on  the  sum  or  thing  loaned ;  nor  shall  any 
tour.1  of  equity  require  or  compel  the  payment  or  deposit  of  the  principal 
sum.,  c  any  part  thereof,  as  a  condition  of  granting  relief  to  the  bor- 
rower, v.  any  case  of  a  usurious  loan  forbidden  by  this  chapter." 

Soon  Sifter  this  statute  took  effect,  it  received  a  construction  in  the 
court  of  chancery,  and  which  was  affirmed  on  appeal  by  the  court  of  errors. 
The  case  arose  upon  a  bill  filed  by  the  surety  to  a  promissory  note, 
against  the  bolder,  who  had  brought  an  action  at  law  against  both  prin- 
cipal and  sjiteiy/for  discovery  and  relief,  and  for  an  injunction  against 
the  suit  at  law.  The  bill  contained  no  offer  to  pay  the  principal  sum 
actually  lent,  or  legal  interest  thereof,  nor  was  any  money  deposited  or 
Drought  into  court.  On  the  part  of  the  complainant  it  was  insisted,  that 
andei  the  provision  of  the  eighth  section  of  the  act,  above  quoted,  the  de- 
fendant was  not  bcund  to  pay,  or  offer  to  pay,  any  part  of  the  principal,  or 
legal  interest  of  tb<3  money  actually  lent,  to  entitle  him  to  an  answer  from 
the  defendant,  and  to  a  decree  declaring  the  security  void.  The  counsel 
for  the  defendant  (>he  plaintiff  in  the  action  on  the  note)  contended,  on 
the  other  hand,  that  the  provisions  of  the  section  in  question  were  only 
intended  to  deprive  the  lender  of  money  upon  usury  of  the  interest  on 
tl  e  sum  loaned,  when  the  borrower  was  compelled  to  resort  to  a  court  of 
equity  for  a  discovery  of  the  usurious  contract;  and  also  to  relieve  the 
complainant  from,  the  inconvenience  of  paying  or  depositing  the  sum  actu- 
ally due,  in  the  £rot  instance,  as  a  condition  of  granting  relief  by  com- 
pelling a  discovery  ai  1  granting  an  injunction  to  stay  proceedings  at  law 
in  the  mean  time.  II 3  also  contended  that  the  section  was  limited  to  the 
Case  of  a  suit  by  the  b^vrower ;  and  was  not  applicable  to  the  case,  in 
which  the  complainant  was  not  the  actual  borrower,  but  merely  the  surety 
for  the  person  to  when  the  money  was  loaned.  On  these  questions 
Chancellor  "Walworth  rcade  the  following  remarks  :  "  This  section  of  the 
revised  statutes  has  undoubtedly  introduced  a  new  principle  in  the  law 
of  usury  as  administer  d  in  this  court.  And  to  ascertain  its  true  con- 
struction it  is  necessarj  to  inquire  how  the  law  previously  stood,  and  what 
ch;in ire  the  legislature  intended  to  introduce.  The  usury  laws  having 
leclared  all  bonds,  bnU,  notes,  contracts,  and  assurances  which  were 
contaminated  with  ttsurr,  void,  it  followed  of  course,  that  no  suit  could  be 
sustained  by  the  usurer  or  his  assignee,  either  at  law  or  in  equity;  even 
t<>  recover  back  the  m  m  \v  actually  lent,  with  the  legal  interest  thereon. 
Ii  iwover,  Was  fuun     by  the  courts  to  be  an  insufficient  protection 


u 


218  Of  Fraud.  [Ch.  3 

to  tho  borrower,  from  his  inability  to  establish  tbe  fact  of  usury  by  the 
ordinary  modes  of  proof  adopted  in  courts  of  common  law.  It  was  also 
found  that  in  many  cases  where  the  borrower  had  the  means  of  proving 
the  usury,  the  nature  of  the  security  taken  by  the  lender  was  such  as  tc 
give  the  borrower  no  opportunity  to  plead  and  establish  the  fact  in  a 
court  of  law.  A  common  case  of  this  kind  was  the  taking  of  a  bond  and 
warrant  of  attorney,  and  entering  a  judgment  thereon  ;  by  which  means 
the  defendant  was  precluded  from  pleading  the  usurious  consideration  of 
the  bond.  And  when  the  lender  had  taken  a  mortgage  for  the  loan,  con- 
taining the  usual  power  of  sale,  he  also  had  the  right  to  foreclose  the 
equity  of  redemption  of  the  borrower  by  advertising  under  the  statute, 
and  without  applying  to  any  court.  In  these,  and  some  other  cases  of  a 
similar  nature,  it  became  necessary  for  the  borrower  to  resort  to  tbe  ex- 
traordinary jurisdiction  of  the  court  of  chancery  to  obtain  discovery,  or 
relief.  But  wheu  he  applied  to  this  court  as  a  complainant,  or  actor,  ho 
found  himself  differently  situated  in  respect  to  his  rights  under  the 
usury  laws,  from  what  he  would  have  been  when  placed  in  the  situation 
of  a  defendant,  either  at  law  or  in  equity.  Coming  here  to  ask  the  equi- 
table interference  of  this  court,  he  was  met  by  the  standing  maxim  of 
courts  of  equity,  that  '  he  that  will  have  equity  must  do  equity.'  (Fran- 
cis' Maxims,  1.)  And  this  court  could  not  afford  him  any  relief  against 
the  usurious  premium  included  in  the  security  which  he  sought  to  set 
aside,  except  upon  the  terms,  or  conditions,  that  he  should  repay  to  the 
defendant  the  money  actually  lent,  with  legal  interest  thereon.  If  a  dis- 
covery was  necessary  either  to  aid  him  in  a  defense  at  law,  or  otherwise, 
he  was  also  met  by  another  settled  principle  of  this  court,  that  it  will  not 
extort  from  the  defendant  an  answer  on  oath,  and  thus  compel  him  to  be 
a  witness  against  himself,  when  such  answer  might  subject  him  to  a 
criminal  proceeding,  or  to  a  penalty  or  forfeiture,  or  to  any  loss  in  tho 
.nature  of  a  forfeiture." 

"  In  accordance  with  these  two  principles,  it  had  become  the  settled 
law  of  the  court  of  chancery,  previous  to  the  adoption  of  the  revised  stat- 
utes, that  a  defendant  was  not  bound  to  answer  a  bill  seeking  a  discovery 
as  to  any  usurious  transactions,  when  a  disclosure  of  the  usury  would,  or 
might,  subject  him  to  the  forfeiture  or  loss  of  the  whole,  or  any  part  of 
the  money  actually  lent,  or  of  the  legal  interest  thereon.  And  even  in 
cases  where  the  complainant  could  establish  the  usury  without  the  aid 
of  the  defendant's  answer,  no  relief  could  be  granted  to  him  in  this  court 
except  upon  tbe  equitable  terms,  or  condition,  that  he  should  pay  to  tho 
defendant  what  was  justly  due.  (Whitmore  v.  Francis,  8  Price's  R.  616. 
Tupper  v.  Powell,  1  J.  Ch.  C.  489.     Scott  v.  Nesbitt,  2  Cox's  C.  C.  188. 


Ch.  3.J  Usury.  219 

Fanning  v.  Dunham.  5  J.  Ch.  It.  122.)  These  two  principles  are  dis- 
tinct in  their  nature,  although  they  were  both  applicable  to  the  case  of 
a  complainant  seeking  discovery  and  relief  in  this  court,  against  a  usuri- 
ous contract ;  and  the  last  might  be  entirely  abolished  by  the  legislature, 
without  interfering  with  any  of  the  natural  rights  of  the  defendant,  or 
doing  any  thing  inconsistent  with  the  spirit  of  our  free  institutions.  The 
rule  that  this  court  will  not  lend  its  aid  to  a  party  to  enforce  a  penalty 
or  a  forfeiture,  and  the  maxim  that  a  party  coming  here  to  ask  equity 
must  do  equity  relates  merely  to  the  principles  upon  which  this  court 
acts  in  the  exercise  of  its  general  jurisdiction." 

After  conceding  that  it  was  competent  for  the  legislature  to  abolish 
these  maxims  of  a  court  of  equity,  provided  the  right  of  trial  by  jury 
was  not  infringed,  and  no  other  provision  of  the  constitution  violated,  he 
expressed  the  opinion  that  the  legislature  intended  to  alter  the  princi- 
ples on  which  a  court  of  equity  acts  in  setting  aside  usurious  contracts 
and  securities,  in  those  cases  where  the  complainant  has  the  means  of 
establishing  the  usury  without  resorting  to  the  oath  of  the  defendant ; 
but  to  leave  those  principles  unaltered,  when  the  nature  of  the  security 
was  such  as  to  compel  the  borrower  to  resort  to  a  court  of  equity  fur 
relief.  Hence,  he  says,  "  when  the  complainant  wishes  to  examine  the 
defendant,  as  a  wutness  against  himself,  to  establish  the  fact  of  usury,  he 
must  in  his  bill  offer  to  pay  the  amount  of  principal  actually  due  or 
loaned.  And  if  the  answer  of  the  defendant  can  be  used  by  a  third  per- 
son to  avoid  the  security,  or  to  relieve  himself  from  responsibility  for 
that  amount,  the  complainant  must  also  bring  into  court  the  amount 
claimed  to  be  due,  or  must  give  such  security  as  the  court  may  direct, 
for  the  payment  of  the  principal  sum  according  to  the  offer  in  his  bill, 
whenever  that  sum  shall  have  been  ascertained.  If  there  is  no  such  offer 
in  the  bill,  and  the  subject  is  not  of  equitable  jurisdiction  otherwise  than 
for  the  purpose  of  discovery,  and  an  injunction  to  stay  proceedings  at 
law,  the  defendant  may  demur  both  as  to  the  discovery  and  relief,  on 
the  ground  that  the  plaintiff's  remedy,  if  any,  is  at  law.  "When  a  case 
of  equity  is  made  out  by  the  bill  which  renders  it  necessary  for  the  com- 
plainant to  come  into  a  court  of  equity  for  relief  he  may  waive  an 
answer  from  the  defendant  on  oath,  and  may  proceed  to  establish  the 
facts  by  proofs,  as  in  other  cases.  "When  an  answer  on  oath  is  not  waived, 
the  defendant  may  demur  to  so  much  of  the  discovery  as  relates  to  the 
charge  of  usury,  and  may  answer  as  to  the  relief,  as  in  other  cases, 
when  the  complainant  is  entitled  to  relief,  but  when  the  defendant 
fannot  make  a  discovery  as  to  the  facts  upon  which  the  relief  is  asked, 


220  Of  Fraud.  [Ch.  3. 

without  subjecting  himself  to  a  criminal  prosecution,  or  a  penalty,  leaving 
the  complainant  to  establish  the  allegation  of  usury,  if  he  can  by  proof." 

The  chancellor  did  not  decide  whether  a  surety  could  be  treated  as 
the  borrower  within  the  meaning  of  the  statute.1 

This  cause  went  to  the  court  for  the  correction  of  errors,  where  the 
order  of  the  chancellor  was  affirmed.'2  In  that  court  the  prevailing  opin- 
ion was  pronounced  by  Mr.  Justice  Sutherland,  who,  after  reviewing  the 
history  of  the  changes  introduced  by  the  revisers  into  the  law  of  usury, 
says,  with  reference  to  the  first  part  of  the  section,  that  the  legislature 
intended  to  relieve  the  borrower  from  the  necessity  of  paying  the  inter- 
est on  the  sum  loaned,  as  a  condition  to  a  discovery,  but  meant  to  leave 
him  with  respect  to  the  principal  as  the  law  was  before ;  and  that  the 
provision  in  the  other  clause  of  the  section,  forbidding  a  court  of  equity 
to  require  or  compel  the  payment  or  deposit  of  the  principal  sum  as  a 
condition  of  granting  relief,  applies  only  to  cases  where  the  complainant, 
although  he  could  prove  the  usury  without  resort  to  the  oath  of  the  lender, 
has  no  opportunity  of  setting  up  the  defense,  in  consequence  of  the 
nature  of  the  securities  executed  by  him ;  as  for  instance,  a  judgment 
entered  on  bond,  and  warrant  of  attorney.,  a  mortgage  with  power  of 
foreclosure  under  the  statute,  &c.  On  the  other  point,  both  Mr.  Jus- 
tice Sutherland,  who  gave  the  prevailing  opinion,  and  Mr.  Senator  Tracy, 
who  dissented  on  a  part  of  the  case,  concurred,  that  a  surety  is  a  bor- 
rower within  the  meaning  of  the  law,  and  entitled  to  all  the  remedies 
and  means  of  defense  which  are  given  to  the  principal. 

The  decision  in  Livingston  v.  Harris,  supra,  doubtless  led  to  the  pass- 
age of  the  act  of  1837,3  the  fourth  section  of  which  is  in  these  words : 
"  Whenever  any  borroicer  of  money,  goods,  or  things  in  action,  shall 
file  a  bill  in  chancery  for  relief,  or  discovery,  or  both,  against  any  viola- 
tion of  the  provisions  of  the  title  of  the  revised  statutes,  '  Of  the  inter- 
est of  money,'  or  of  this  act,  it  shall  not  be  necessary  for  him  to  pay  or 
offer  to  pay  any  interest  or  principal  on  the  sum  or  thing  loaned ;  nor 
shall  any  court  of  chancery  require  or  compel  the  payment  or  deposit 
of  the  principal  sum  or  interest,  or  any  portion  thereof,  as  a  condition  of 
granting  relief  or  compelling,  or  discovering  to  the  borrower  in  any  case, 
usurious  loans  forbidden  by  said  title  or  by  this  act." 

By  a  subsequent  section4  it  was  enacted  that  whenever  it  should  sat- 
isfactorily appear  by  the  admission  of  the  defendant,  or  by  proof,  that 
any  bond,  bill,  note,  assurance,  pledge,  conveyance,  contract,  security,  or 

'  Livingston  v.  Harris,  3  Paipe.  523.  ;<   Lnws  of  1887,  p.  486. 

<  S.  C.  in  Error,  11  Wend.  82'J.  4  Id.  :  5. 


Ch.  3.]  Usury.  221 

any  evidence  of  debt,  had  been  taken  or  received  in  violation  of  the 
provisions  of  the  said  title  or  that  act,  the  court  of  chancery  should 
declare  the  same  to  he  void,  and  enjoin  any  prosecution  thereon,  and 
order  the  same  to  he  surrendered  and  canceled. 

Under  the  provisions  of  the  act  of  1837,  the  chancellor  held  that  the 
word  borrower,  as  used  in  the  revised  statutes,  and  in  the  8th  section  of 
the  act  of  1837,  was  not  confined  to  the  person  to  whom  the  original 
loan  was  made  ;  hut  embraced  his  sureties,  heirs,  devisees  and  personal 
representatives.  He  also  held  that  it  embraced  subsequent  grantees  of 
premises  subject  to  a  usurious  mortgage,  Avho  took  the  premises  adverse 
to  the  claim  of  the  mortgagee,  but  who  subsequently  guarantied  the 
payment  of  the  bond  and  mortgage,  including  the  usurious  premium  for 
the  loan.1  These  questions  were  brought  into  the  court  of  errors,  on  ap- 
peal from  the  decision  of  the  chancellor,  in  another  case,  involving  the 
same  principles,  and  decided  about  the  same  time,  and  that  court  con- 
curred with  the  chancellor  in  the  opinion  that  the  word  "borrower,"  in 
the  statutes  before  mentioned,  embraced  not  only  the  party  to  whom  the 
original  loan  was  made,  but  also  his  sureties,  heirs,  devisees  and  personal 
representatives,  but  differed  from  him  with  respect  to  its  embracing 
subsequent  grantees.  Accordingly,  when  lands  were  purchased  at  a 
sheriff's  sale,  with  knowledge  that  they  were  covered  by  a  prior  usurious 
» .ige,  and  the  purchaser,  after  obtaining  the  sheriff's  deed,  filed  a 
bill  in  equity  to  set  aside  the  mortgage,  to  which  the  mortgagee  demurred 
on  the  ground  that  it  contained  no  allegation  of  payment  or  offer  to  pay 
the  sum  actually  loaned,  &c,  it  was  held  that  the  demurrer  was  well 
taken,  and  the  bill  was  dismissed.2  This  was  upon  the  principle,  that 
the  legislature  had  not  relieved  any  other  person  save  the  borrower,  and 
standing  in  legal  privity  with  him,  from  the  necessity  of  complying 
with  the  long  established  practice  of  the  court,  of  offering  to  pay  the  sum 
actually  due,  as  a  condition  to  the  relief  prayed. 

The  surety  of  the  borrower  is  entitled  to  all  the  privileges  under  these 
acts  of  the  borrower  according  to  the  fore^oin";  cases.  This  doctrine 
was  questioned  by  Bronson.  J.,  and  approved  by  Gardiner,  J.,  in  the  court 
of  appeals,  but  the  point  was  not  passed  upon  by  the  court.3  It  stands, 
therefore,  upon  the  decision  of  the  court  of  errors. 

"With  regard  to  the  validity  of  securities  taken  under  usurious  agree- 
ments, the  English  statute  of  the  12th  Ann,  stat.  2,  ch.  16,  enacted  that  all 


'  Cola  v.  Barage,  10  Paige,  583.  8  Vilas  v.  Jones,  1  Co:nst.  274. 

''  Pout  v.   The    Bank    of  Qtica,  7  Hill, 
8!)  \.     Post  v.  Dart,  8  Paige,  639. 


22ii  Of  Fraud.  [Ch.  3. 

bonds,  contracts  and  assurances  whatsoever,  made  for  payment  of  any 
principal,  or  money  to  be  lent,  whereby  usurious  interest  was  taken  01 
received,  should  be  utterly  void.1  Under  this  statute,  it  was  held  by  the 
English  courts,  that  a  bill  or  note  was  void  for  usurv,  even  in  the  hands 
of  a  bona  fide  holder.2  The  extreme  hardship  of  this  rule  led  to  the 
statute  of  58  Geo.  3,  ch.  93,  which  enacted  that  all  bills  and  notes  there- 
after made  upon  usurious  consideration,  or  contract,  should  not  be  void 
in  the  hands  of  an  indorsee  for  valuable  consideration,  unless  such  in- 
dorsee had,  at  the  time  of  discounting  or  paying  such  consideration  for  the 
same,  actual  notice  that  such  bill  or  note  had  been  originally  given  for  a 
usurious  consideration,  or  upon  an  usurious  contract.3  The  New-York 
statute  of  1787,  for  preventing  usury,4  like  the  English  statutes  of 
12th  Ann,  made  all  bonds,  bills,  notes,  contracts  and  assurances  what- 
soever, made  or  taken  upon  an  usurious  consideration,  utterly  void. 
The  New- York  statute  specified  "bills  and  notes,"  by  name,  which  were 
not  mentioned  in  the  English  statute,  but  which  were  held  to  be  within 
it,  by  the  courts.  The  English  cases  under  the  statute  were  authority 
for  our  courts  under  the  statute  of  1787,  and  were  followed  accordingly.3 
And  this  continued  to  be  the  rule  until  the  revised  statutes  took  effect, 
in  1830.  By  the  fifth  section  of  the  act  "  Of  the  interest  of  money," 
the  provisions  of  the  English  statute  of  58  George  3d  were  adopted. 
After  declaring  all  bonds,  bills,  notes,  assurances,  conveyances,  all  other 
contracts  or  securities  whatsoever,  and  all  deposits  of  goods  or  other  things 
whatsoever,  whereupon  or  whereby  there  shall  be  reserved  or  taken,  or 
secured  or  agreed  to  be  reserved  or  taken,  any  greater  sum  or  greater 
value,  for  the  loan  or  forbearance  of  any  money,  goods  or  things  in  action, 
than  is  prescribed  by  the  act  (seven  per  cent)  to  be  void;  it  enacts  that 
the  section  shall  not  extend  to  any  bills  of  exchange  or  promissory  notes, 
payable  to  order  or  bearer,  in  the  hands  of  an  indorsee  or  holder,  who 
shall  have  received  the  same  in  good  faith,  and  for  valuable  consideration, 
and  who  had  not,  at  the  time  of  discounting  such  bill  or  note  or  paying 
•  [deration  for  the  same,  actual  notice  that  such  bill  or  note,  had 
originally  given  for  a  usurious  consideration,  or  upon  a  usurious 
contract. 

This  statute  was  held  to  have  no  retrospective  effect,  but  to  be  opera, 
rive  only  upon  contracts  subsequently  made.6     The  decisions  under  it, 

1  Cbitty  on  Bills,  99,  Springfield  eel.  3  Chitty  on  Bills,  110. 

2  Low  v.  Waller,  Doug.  735.     Cuth-        4  1  R.  S.  U. 

oert  v.  Haley  s  T.  R.  390.     Ferrall  v.        5  Wilkie  v.  Roosevelt,  3  J.  0.  200. 
Shaen,  I   Saund.  295.    Parr  v.  Eliason,        c  Hackley  v.  Snrague,  10  Wend,  173 
]  East,  92.     Chitty  on  Bills,  110. 


Cli.  3.]  Usury.  223 

were  similar  to  those  under  the  corresponding  English  statute.  On 
proof  that  a  note  was  usurious  in  its  inception,  it  was  incumbent  on  the 
holder  to  show  that  he  paid  a  valuable  consideration  for  it.1  The  opera- 
tion of  the  English  statute.  Bays  Mr.  Chitty,  seems  to  be,  that  if  in  an  ac- 
tion on  a  bill  or  note,  the  defendant  should  succeed  in  establishing  that  it 
was  founded  in  a  usurious  contract  or  consideration,  then  the  plaintiff 
must  prove  that  he  gave  value  for  it ;  and  then  the  defendant  must  show 
that  the  plaintiff,  nevertheless,  had  notice  of  the  usury  at  the  time  he 
the  security.8 

A  court  of  equity,  when  applied  to  by  the  borrower,  or  party  standing 
in  legal  privity  with  him,  for  relief  against  a  usurious  contract,  declared 
utterly  mid  by  the  act  of  1787,  and  by  the  revised  statutes  of  1830,  in- 
variably refused  so  to  declare  it,  except  upon  the  terms  of  payment  of  the 
Bum  actually  due,  of  the  principal  and  interest  of  the  loan.  Had  the  in- 
validity of  the  security  depended  upon  actual  fraud  in  obtaining  the 
instrument,  as,  that  one  instrument  was  fraudulently  substituted  for 
another,  or  that  it  was  without  any  consideration,  no  such  terms  would 
have  been  imposed  by  the  court  as  a  condition  of  relief.  But  when  there 
is  no  moral  fraud  in  the  case,  and  the  contract  is  void  only  by  reason  '*f 
travelling  a  rule  of  public  policy,  or  a  positive  statute,  a  court  of 
.',  it  has  been  seen,  would  not  interfere,  and  declare  it  void,  and  set 
;e,  except  upon  the  terms  of  reimbursing  the  lender  the  sum  actually 
due  fa-  his  advances  and  interest.3 

The  act  of  New-York  of  1837,  so  far  as  it  declared  usurious  contracts 

void.  •  more  stringent  than  the  act  of  1787  and  the  revised  stat- 

u  •     ;  but   by  repealing  the  last  clause  of  the  5th  section  of  the  revised 

statutes,  it  left  commercial   paper  void  even  in  the  hands  of  a  bona  fide 

•    notice.4 

But  a  bill,  or  note,  or  other  chose  in  action,  valid  in  its  inception,  may 
be  purchased  at  a  discount  beyond  the  legal  rate  of  interest,  although  the 
payer  indorses  the  note.  In  a  case  of  that  kind  the  indorser  was  allowed 
to  re  linst  the  maker,  the  full  amount  of  the  note  ;5  but  was  per- 

mitted to  recover  against  the  indorser  only  the  sum  actually  paid  on  the  pur- 
chase, with  interest  thereon.  In  cases  of  this  character,  however,  it  is  always 
5pen  to  inquiry,  whether  the  transaction  be  a  bona  fide  transfer  and  pur- 

1  Seymour  v.  Strong,  1  Hill,  500.  S.  C.  11    TVend.  320,   and  cases  before 

8  Chitty  on  Bills,  110,  652.  cited. 

•  Livingston  v.  Harris,  3  Paige,  528.        4  Lawsof  1837, p. 467     1  It.  S.  772,  §5. 

s  Cram  v.  Hendricks,  7  Wend.  5(30. 


224  Of  Fraud.  [Ch.  3 

chase  of  the  security,  or  a  mere  device,  to  evade  the  statute  of  usury.'  In 
a  subsequent  case,  the  same  principle  was  applied  to  the  purchase  of  a 
bond  and  mortgage  at  a  discount  beyond  legal  interest.2 

If  the  borrower  has  paid  the  money  upon  an  usurious  agreement,  he 
may  by  statute,  within  one  year  thereafter,  recover  against  the  person 
uho  shall  have  taken  or  received  the  same,  or  his  personal  representative, 
the  amount  of  the  money  so  paid.3  But,  independently  of  the  statute, 
the  excess  of  interest  may  be  recovered  in  equity,  and  even  at  law,  in  an 
action  for  money  had  and  received.4  The  rule,  in  ppari  delicto,  atior  esl 
conditio  defendentis,  applies  only  when  both  parties  are  equally  guilty, 
as  in  bribery,  and  the  like.  But  the  statute  of  usury  was  made  to  protect 
needy  and  necessitous  persons  from  the  oppression  of  the  usurer  and 
moneyed  men,  who  are  eager  to  take  advantage  of  the  distress  of  others; 
while  they,  on  the  other  hand,  from  the  pressure  of  their  distress,  are 
ready  to  come  into  any  terms,  and  with  their  eyes  open,  not  only  break 
the  law,  but  complete  their  ruin.  It  is  an  abuse  of  terms  to  say,  that  he 
who  is  driven  by  great  pecuniary  distress  to  submit  to  the  exactions  of 
the  usurer,  is  a  particeps  criminis  with  his  oppressor.3 

An  action  may  be  framed  under  the  code  in  analogy  to  a  bill  in  equity 
for  discovery  and  relief  against  a  usurious  transaction.  No  other  bill,  or 
action  of  discovery  has  been  abolished,  except  s.uch  as  formerly  was  used 
in  aid  of  another  action.6  Every  action,  whether  at  law  or  in  equity 
may  be,  at  the  election  of  the  plaintiff,  an  action  for  discovery  and  relief.7 
If  the  plaintiff  desires  the  answer  of  the  defendant  to  be  under  oath,  he 
can  require  it,  by  verifying  the  complaint.  If  the  pleadings  be  properly 
framed,  the  answer  of  the  defendant,  in  such  case,  will  make  discovery 
as  to  the  facts  set  forth  in  the  complaint.  And  the  provision  in  fcbecode, 
that  no  pleading  can  be  used  in  a  criminal  prosecution  against  the  party, 
of  a  fact  admitted  or  alleged  in  such  pleading,  is  merely  the  enactment 
of  the  practice  in  this  respect,  which  existed  in  courts  of  equity  before  tho 
adoption  of  the  code.8  Whether  the  action  be  brought  at  law  or  in  equity 
for  relief  against  a  usurious  agreement,  the  party  seeking  to  repudiate 
the  agreement  must  pay,  or  offer  to  pay,  in  cases  where  he  is  not  excused 


1  Cram  v.  Hendricks,  7  Wend.  509.  6  21  Wend.  2S5.     1  Fonb.  Eq.  B.  1,  ch. 

3  Rapelye  v.  Anderson,  4  Hill,   472.  4,  §  7  and  notes. 

Mitchell  v.  Oakley,   7  Paige,   08.     Judd  6  Code,  §  3S9. 

v.  Traver,  S  Paige,  548.     21  Wend.  285.  7  Id.  §  157. 

5  1  R.  S.  772,  §  3.  •  Livingston  v.  Harris,  3  Paige,  534, 

'  Browning  v.  Morris.  Cowp.  792.  see  opinion  of  Chancellor.     Code,  §  157 


Ch.  3.J  Wager  Contract.  225 

from  so  doing  by  the  act  of  1837,  the  sura  actually  due  before  ho  com- 
mences his  action ;  and  that  fact  must  appear  in  his  complaint.1 

It  was  conceded  in  an  early  case,  that  at  common  law,  a  wager  is  recov- 
erable wherein  the  parties  have  no  other  interest  than  that  which  they 
create  by  the  wager  itself.2  But  it  was  decided  in  the  same  case,  and 
has  been  repeatedly  since,  that  a  wager  which  is  against  public  policy 
is  void,  equally  as  if  it  contravened  a  positive  law.3  In  one  case  before 
Lord  Ilardwick,  where  the  defendant  had  won  £500  of  the  plaintiff  at 
backgammon,  for  which  he  some  time  afterwards  gave  the  defendant  a 
bond,  and  after  that  paid  part  of  the  money,  on  a  bill  brought  to  be 
relieved  against  the  bond,  and  to  be  repaid  the  money  which  he  had  paid 
in  part  discharge  of  it,  his  lordship  decreed  accordingly  with  great  clear- 
ness ;  and  said  by  statute  9th  Ann,  all  securities  for  money  won  at  play 
arc  made  void ;  consequently  the  payment  under  any  security  cannot  bo 
supported.  That  the  time  limited  by  that  statute,  for  suing  for  the 
recovery  of  money  paid,  means  money  actually  paid  at  the  time  it  is  lost, 
and  does  not  extend  to  securities.4 

In  this  state,  the  remedy  has  been  in  general  asserted  at  law,  under  the 
provisions  of  the  statutes,  but  there  can  be  no  doubt  that  the  equitable 
jurisdiction  of  the  court  may  be  invoked,  to  vacate  the  securities  taken 
f<  >r  a  gambling  debt,  or  a  debt  originating  in  any  transaction  forbidden 
by  the  law. 

We  shall  proceed  now  to  the  consideration  of  another  class  of  cases, 
where  the  benign  interposition  of  a  court  of  equity  may  be  invoked  to 
relieve  against  frauds  upon  the  rights  and  interests  of  third  persons, 
comprising  all  those  acts  which  tend  to  delay,  hinder  or  defraud  creditors. 
These  acts  arc  sometimes  the  result  of  actual,  intentional  and  premedi- 
tated fraud,  and  of  course  relievable  either  at  law  or  in  equity;  but  thev 
more  frequently,  perhaps,  fall  within  the  class  of  constructive  frauds'; 
being  acts  in  contravention  of  the  requirements  of  the  statute,  or  against 
the  policy  of  the  law,  and  tending  to  defraud  creditors  and  subsequent 
purchasers.  The  two  classes  of  frauds  are  often  found  so  blended  together, 
that  it  is  impossible  to  separate  them,  and  both  perhaps  exist  in  the  sam« 

1  Fitzroy  v.  Guillam,  1  T.  R.  151,  and  9  Oowen,  1G9.     Morgan  v.  Groff,  5  Denio. 

i>es  iii  Chancery  already  cited.  304.     S.  C.  4  Barb.  524. 

'  Bunn  v.  Riker,  4  J.  R.  426.  «  Rawden  v.  SbadweH,  Anib.  209.  Por- 

3  Mount  v.  Wait,  7  J.  R.  434.     Denni-  tarlington  v.  Soulby,  3  My].  &  K.  104. 

ni.on    v.    Cock,    12    id.  37G.     Lansing  Woodrofte  v.  Farnham,  2  Vena.  21)1. 
v.  Lansing,   8   id.  454.     Rnet  v.  Gott, 

Eq  Jur.  29 


226  Of  Fraud.  fCli.  8 

transaction.  Lord  Mansfield  is  reported  to  have  said,  on  one  occasion, 
that  the  principles  and  rules  of  the  common  law,  as  now  universal!  y  under- 
stood, are  so  strong  against  fraud  in  every  shape,  that  the  common  law 
would  have  attained  every  end  proposed  by  the  statutes  13  Eliz.  ch.  5, 
and  27  Eliz.  ch.  4.1  This  is  perhaps  stating  the  doctrine  too  broadly, 
as  courts  of  equity  afford  relief  in  cases  not  mentioned  in  those  statutes. 
And  there  are  many  instances  of  fraud  that  would  affect  instruments  in 
equit}T,  of  which  a  court  of  law  cannot  take  notice.2 

The  English  statutes  on  the  subject  of  frauds  have  been  closely  copied 
by  the  revised  statutes  of  this  state.  The  first  section  of  title  two,  chap- 
ter seven,  part  two,  R.  S.3  enacts,  that  all  deeds  of  gift,  all  conveyances, 
and  all  transfers  or  assignments,  verbal  or  written,  of  goods,  chattels,  or 
things  in  action,  made  in  trust  for  the  use  of  the  person  making  the  same, 
shall  be  void  as  against  the  creditors,  existing  or  subsequent,  of  such  per- 
son. This  was  taken  from  the  English  statute  of  3d  Henry  7th,  ch.  4, 
but  is  made  somewhat  more  broad  and  comprehensive.'  The  13th  Eliz. 
ch.  5,  makes  all  gifts  of  goods  and  chattels,  as  well  as  of  lands,  by  writing 
or  otherwise,  made  with  intent  to  delay,  hinder  and  defraud  creditors, 
void  as  against  the  persons  to  whom  such  fraud  would  be  prejudicial. 
This  is  embraced  in  the  first  section  of  title  three,  chapter  seven,  of  part 
two  of  the  revised  statutes.  And  the  exception  in  the  English  statute, 
in  favor  of  bona  fide  purchasers  upon  good  consideration,  without  notice 
of  the  fraud,  is  adopted  in  substance  and  with  some  qualification,  in  tho 
fifth  section  of  the  same  title  of  the  New-York  statute.4  The  statute  of 
the  27th  Eliz.  ch.  4,  was  made  against  fraudulent  conveyances  of  lands  to 
defeat  subsequent  bona  fide  purchasers,  and  it  applied  in  favor  of  subse- 
quent purchasers  for  valuable  consideration,  even  in  cases  of  fair  volun- 
tary conveyances,  provided  they  were  purchasers  without  notice  of  the 
voluntary  convej^ance.  The  corresponding  provision  of  the  New- York 
statute,  (2  R.  S.  134,  §j  1,  2,)  avoids  every  conveyance  of  any  estate  or 
interest  in  lands,  or  the  rents  and  profits  of  lands,  and  every  charge  upon 
lands,  or  upon  the  rents  and  profits  thereof,  made  or  created  with  the  in- 
tent to  defraud  prior  or  subsequent  purchasers  for  valuable  consideration, 
of  the  same  lands,  rents  or  profits,  as  against  such  purchaser.  The  sec- 
ond section  enacts  that  no  such  conveyance  or  charge  shall  be  deemed 
fraudulent,  in  favor  of  a  subsequent  purchaser,  who  shall  have  actual  or 
legal  notice  thereof,  at  the  time  of  his  purchase,  unless  it  shall  appeal 

1  Cadogan  v.  KeDnett,  Oowp.  434.   Per  a  Per  Lord  Eldon  in  Butcher  v.  Butch 

Marshall,  Ch.  J.  in  Hamilton  v.. Russell,  er,  1  Ves.  &  B.  98. 

1    Oranch,    316,  and  per  Spencer,  J.  in  s  2  R.  S.  135. 

Sands  v.  Hildreth,  14  J.  R.  493.  4  <J  R.  8,  137,  §5  1,  5. 


Cli.  3.]        In  Fraud  of  Creditors  and  Purchasers.  227 

that  the  grantee  in  such  conveyance,  or  person  to  be  benefited  by  such 
charge,  was  privy  to  the  fraud  intended. 

It  is  very  properly  remarked  by  a  learned  writer,1  that  the  object  of 
the  legislature  by  the  13th  Elizabeth,  was  to  protect  creditors  frcm  those 
frauds  which  are  frequently  practiced  by  debtors  under  the  pretense  of 
discharging  a  moral  obligation.  The  want  of  a  good  or  meritorious  con- 
sideration to  a  conveyance,  seems  always  to  have  been  a  sufficient  ground 
to  conclude  that  it  was  fraudulent.  While  the  statute  protects  the  legal 
rights  of  creditors  against  the  fraud  of  their  debtors,  it  excepts  from  such 
imputation  the  bona  fide  discharge  of  a  moral  duty.  It  does  not  declare 
all  voluntary  conveyances,  but  all  fraudulent  conveyances,  to  be  void ; 
and  whether  the  conveyance  be  fraudulent  or  not,  is  declared  to  depend 
on  the  consideration  being  good  and  bona  fide. 

It  is  not  enough  that  the  conveyance  is  made  upon  ngood  consideration, 
it  must  also  be  made  bona  fide.  In  the  New-York  statute  it  is  also  pro- 
vided that  no  conveyance  or  charge  shall  be  adjudged  fraudulent  as 
against  creditors  or  purchasers,  solely  on  the  ground  that  it  was  not  found- 
ed on  a  valuable  consideration.2  A  good  consideration  is  sometimes  used 
in  the  sense  of  a  consideration  valid  in  point  of  law }  and  then  it  includes 
a  meritorious  as  well  as  valuable  consideration.  The  meaning  of  the  word 
*'  good"  in  the  statute  of  frauds  is  settled  to  be  the  same  as  "  valuable."3 
The  revised  statutes  use  the  term  u  valuable"  consideration.  A  good  con- 
si  Icration  is  most  generally  used  as  denoting  the  consideration  of  blood, 
oi  of  natural  love  and  affection.4  A  deed  upon  a  good  consideration 
ought  to  prevail,  unless  it  conflicts  with  the  rights  of  creditors  ;  in  which 
ciise  it  should  be  set  aside  in  their  favor,  for  though  the  consideration  be 
g<x)d,  it  is  not  bona  fide. 

When  the  actual  design  and  intent  of  a  purchase  is  to  defraud  the 
creditors  of  the  vendor,  be  the  consideration  paid,  or  agreed  to  be  paid, 
what  it  may,  the  sale  is  doubtless  void  as  against  creditors  either  at  com- 
mon law  or  under  the  statute.  It  thus  becomes  a  purchase  in  badfaitlu 
which  no  court  can  uphold.  This  principle  has  been  extended  to  a  pur- 
chase made  with  intent  to  defeat  the  recovery  by  a  third  person  for  damages 
in  an  action  then  pending  for  a  tort,  and  before  trial,  when  it  could  not 
be  known  with  certainty,  whether  there  would  be  a  recovery  or  not.s 
But  it  is  not  of  this  kind  of  intentional  frauds  that  we  are  now  treating. 


1  1  Fonb.  Eq.  B.  1,  ch.  4,  §  12,  note.  Twyne's  case,  3   Rep.  81,  b.    Taylor  v 

2  2  R.  S.  187,  §  4.  Jones,  2  Atk.  601. 

3  Hodgson    v.    Butts,   8   Cranch,  140.        *  2  Bl.  Com.  297. 

Oopia    v.    Middloton,    2   Mad.    R.    430.        5  Jackson  v.  Myers,  18  J.  R.  425. 


228  Of  Fraud.  [Ch.  3 

T bore  is  a  class  of  cases  which  have  led  to  much  discussion,  «vnd  to 
florae  conflict  of  opinion,  whether  a  voluntary  conveyance  made  by  a  party 
indebted  at  the  time  be  per  se,  fraudulent  as  against  the  creditors  of  the 
grantor,  or  whether  the  circumstance  of  the  indebtedness  of  the  grantor 
is  to  be  taken  only  as  one  of  the  badges  of  fraud  which  may  be  explained. 
This  question  has  sometimes  arisen  between  a  creditor  of  the  grantor  ami 
a  person  holding  under  a  marriage  settlement ;  and  sometimes  between 
such  creditor  and  a  son  or  daughter  of  the  grantee,  to  whom  the  convey 
ance  was  made  as  an  advancement. 

This  subject  was  very  much  considered  by  Chancellor  Kent,  in  1818, 
arising  on  the  question  as  to  the  validity  of  a  post  nuptial  marriage  set* 
tlement.1  After  a  critical  review  of  the  English  cases,  he  came  to  the 
general  conclusion  that  if  the  party  be  indebted  at  the  time  of  the  volun- 
tary settlement,  it  is  presumed  to  be  fraudulent  in  respect  to  such  debts, 
and  no  circumstance  will  permit  those  debts  to  be  affected  by  the  settle- 
ment, or  repel  the  legal  presumption  of  fraud.  The  presumption  of  law 
in  this  case,  said  the  chancellor,  "does  not  depend  upon  the  amount  of 
the  debts,  or  the  extent  of  the  property  in  settlement,  or  the  circumstances 
of  the  party.  There  is  no  such  line  of  distinction  set  up  or  traced  in 
any  of  the  cases.  The  attempt  would  be  embarrassing,  if  not  dangerous 
to  the  rights  of  the  creditor,  and  prove  an  inlet  to  fraud.  The  law  has, 
therefore,  wisely  disabled  the  debtor  from  making  any  voluntary  settle- 
ment of  his  estate,  to  stand  in  the  way  of  existing  debts.  This  is  the 
clear  and  uniform  doctrine  of  the  cases." 

With  respect  to  the  claims  of  subsequent  creditors,  he  held  that  the 
presumption  of  fraud,  arising  from  the  circumstance  that  the  party  was 
indebted  at  the  time,  may  be  repelled  ;  that  it  is  repelled  by  the  fact  that 
these  debts  are  secured  by  mortgage,  or  by  a  provision  in  the  settlement ; 
that  if  no  such  circumstance  exists  the  subsequent  creditor  may  show  a 
prior  indebtedness  ;  that  as  to  subsequent  indebtedness  there  is  no  neces- 
sary legal  presumption  of  fraud,  from  a  voluntary  conveyance ;  and  that 
there  must  be  proof  of  fraud  in  fact ;  and  the  indebtedness  at  the  time  of 
the  conveyance,  in  order  to  be  available  to  a  subsequent  creditor,  must  bo 
such,  in  its  circumstances  and  amount,  as  to  justify  the  conclusion  of  fraud. 

It  is  believed  that  the  doctrine  of  the  chancellor,  to  the  extent  pro- 
mulgated by  him,  was  not  fully  in  accordance  with  the  opinions,  then  en 
tertained,  by  eminent  judges  of  the  supreme  court.  The  learned  jurist 
who  delivered  the  opinion  of  the  court  of  errors  in  Verplank  v.  Sterry, 

'  Reade  v.  Livingston,  3  J.  Ch.  Cases,  481,  500.  S.  P.  Bayard  v.  Hoffman,  4  J. 
Ch.   11.4,50. 


Ch.  3.1         In  Fraud  of  Creditors'  and  Purchasers  122'J 

decided  in  1815,'  evidently  did  not  consider  that  indebtedness  alone  would 
be  sufficient  to  impeach  a  settlement  in  favor  of  existing  creditors.  If 
the  voluntary  settlement  was  made  on  a  meritorious  consideration,  it  wa3 
not  only  necessary  that  the  grantor  should  be  indebted,  but  should  be  in- 
solvent, or  in  doubtful  circumstances,  at  the  time.  In  such  case  it  is  ob 
vious  that  the  settlement  deprives  the  creditors  of  the  means  of  satisfying 
their  debts,  and  the  case  plainly  falls  within  the  statute ;  but  if  the  gran- 
tor be  not  indebted  to  such  a  degree  as  that  the  settlement  will  deprive 
the  creditors  of  an  ample  fund  for  the  payment  of  their  debts,  the  con- 
sideration of  natural  love  and  affection  will  support  the  deed,  although  a 
voluntary  one,  against  his  creditors. 

In  the  case  of  Verplank  v.  Sterry,  supra,  the  question  was  raised  by  a 
subsequent  purchaser,  but  the  learned  judge,  after  adverting  to  the  Eng- 
lish cases,  evidently  thought  that  subsequent  purchasers  stood  on  the 
same  footing  as  subsequent  creditors,  with  respect  to  their  right  to  im- 
peach a  voluntary  settlement.2 

But  whether  the  doctrine  of  Chancellor  Kent,  in  lleade  v.  Livingston, 
was  in  accordance  with  the  judicial  opinions  of  his  cotemporaries  or  not, 
it  was  at  length  in  1825  fully  approved  and  adopted  by  the  supreme  court 
in  Jackson  v.  Seward.3  In  that  case,  the  lessor  of  the  plaintiff  deduced 
title  under  a  judgment  and  execution  against  the  father,  and  the  defend- 
ant,  under  a  deed  from  the  father,  made  before  the  recovery  of  the  judg- 
ment or  the  commencement  of  the  action  in  which  it  was  obtained.  The 
question  of  actual  fraud  in  the  conveyance  was  not  relied  upon,  and  a 
verdict  was  taken  for  the  plaintiff  subject  to  the  opinion  of  the  supreme 
court  upon  the  single  question,  whether  the  deed  was  fraudulent  in  law, 
as  against  the  lessor  of  the  plaintiff. 

After  a  full  discussion  of  the  subject,  the  supreme  court  adopted  the 
reasoning  of  Chancellor  Kent  in  Reade  v.  Livingston.  They  held  that 
a  voluntary  settlement,  or  conveyance  by  way  of  advancement  of  children, 
after  marriage,  by  a  person  indebted  at  the  time,  is  fraudulent  and  void 
against  all  his  creditors,  who  were  such  prior  to  the  settlement  or  ad- 
vancement ;  and  that  without  regard  to  the  amount  of  their  debts,  or  the 
extent  of  the  property  settled,  or  the  circumstances  of  the  person  who 
made  the  settlement  or  advancement.  They  thought  it  was  as  well  ap- 
plicable to  a  debt  due  upon  a  contingent  liability,  as  for  a  debt  then 
actually  due ;  but  with  regard  to  debts  contracted  subsequently  to  the 

1  Per  Spencer,  J.  in  Yerplank  v.  Sterry,        a  Id.  p.  556. 
12  J.  B.  557.  '  5  Co  wen,  67. 


230  Of  Fraud.  fCIi.  5 

settlement,   or  advancement,  the    presumption   of  fraud,  they  thought, 
might  he  repelled  hy  circumstances. 

The  case  of  Jackson  v.  Seward  was  taken  to  the  court  of  errors;  and 
in  the  subsequent  year  (1826)  underwent  a  most  elaborate  discussion  by 
the,  then,  Chancellor  Jones,  and  Senator  Spencer,  when  the  judgment  of 
i  he  supreme  court  was  reversed  by  nearly  a  unanimous  vote.1  On  this 
branch  of  the  case  the  chancellor,  after  questioning  the  doctrine  of  Chan- 
cellor Kent  in  Reade  v.  Livingston,  adopts  the  language  of  Mr.  Justice 
Thompsen  in  Hinde's  Lessees  v.  Longworth.2  "  A  deed  from  a  parent  to 
a  child,  for  the  consideration  of  love  and  affection,  is  not  absolutely  void 
as  against  creditors.  It  maybe  so  under  certain  circumstances  ;  but  the 
mere  fact  of  being  in  debt  to  a  small  amount,  would  not  make  the  deed 
fraudulent,  if  it  could  be  shown,  that  the  grantor  was  in  prosperous  cir- 
cumstances, and  unembarrassed,  and  that  the  gift  to  the  child  was  a  rea- 
sonable provision  according  to  his  state  and  condition  in  life,  and  leaving 
enough  for  the  payment  of  the  grantor's  debts.  The  want  of  a  valuable 
consideration  may  be  a  badge  of  fraud,  but  is  only  presumptive,  and  not 
conclusive  evidence  of  it,  and  may  be  met  and  rebutted  by  evidence  on 
the  other  side." 

Other  combinations  of  circumstances  might  produce  the  same  effect,  in 
repelling  this  presumptive  evidence  of  fraud.  It  would  be  the  duty  of 
the  court,  before  it  pronounced  its  judgment,  to  look  at  the  whole  case, 
to  determine  whether  the  deed  from  the  father  to  the  son  was  voluntary 
or  for  a  consideration  ;  and,  if  voluntary,  how  far  the  other  facts  of  the 
case  would  repel  the  presumption  of  fraud,  which  the  character  of  the 
conveyance  would  create. 

The  opinion  of  Senator  Spencer  was  no  less  decided  on  the  doctrine  in 
question.  He  treated  the  case  as  if  the  jury  had  found  specially  that 
there  was  no  actual  fraud.  This  was  doubtless  the  true  ground  on  which 
to  place  the  case.  The  question  then  became,  on  this  branch  of  the  case, 
whether  a  voluntary  conveyance  by  a  Hither  to  a  child  is  in  law  fraudu- 
lent as  against  creditors,  or  only  evidence  of  fraud  to  be  passed  upon  by 
the  jury.  He  held  that  it  was  not  conclusive  evidence  of  fraud,  but  was 
a  fact  to  be  submitted,  with  other  circumstances,  to  the  consideration  of 
the  jury. 

A  voluntary  conveyance  is  a  deed  without  any  valuable  consideration.2 
The  adequacy  of  the  consideration  is  another  matter,  and  becomes  mate- 


1  Seward  v.  Jackson,  8  Cowen,  406, 422.        '  Per  Spencer,  in  Seward  v.  Jackson,  8 
*  11  Wheat.  199,  213;  and  see  Sexton    Cowen,  430.     Jackson  v.  Peck,  4  "Wend. 
t.  Wheaton,  8  id.  229,  242.  300. 


Oli.  o.J         In  Fraud  of  Creditors  and  Purchasers.  231 

rial  only  in  ascertaining  the  fraudulent  intent.  Strictly  speaking,  says 
Spencer,  senator,  in  the  same  case,  there  is  no  such  thing  as  fraud  in 
law ;  fraud  or  no  fraud  is,  and  ever  must  be,  a  fact ;  the  evidence  of  it  may 
bo  so  strong  as  to  be  conclusive ;  but  still  it  is  evidence,  and  as  such 
must  be  submitted  to  a  jury.  No  court  can  draw  it  against  the  finding 
of  a  jury.1 

The  lessor  of  the  plaintiff  having  thus  failed  at  law,  filed  his  bill  in  the 
court  of  chancery  to  set  aside  the  deed  in  question,  on  the  ground  of  its 
being  a  voluntary  conveyance  from  the  father  to  the  son,  without  con- 
sideration, and  fraudulent  as  respects  the  complainant,  a  creditor  of  the 
grantor.  The  cause  was  decided  in  the  first  instance  by  the  vice  chan- 
cellor of  the  first  circuit,2  who  after  a  careful  examination  of  the  subject 
dismissed  the  bill,  mainly  upon  the  ground  that  the  matter  was  res  arfjii- 
dicala,  by  the  decision  of  the  court  of  last  resort  in  Jackson  v.  Seward, 
in  eighth  Cowen.  The  cause  then  went  by  appeal  into  the  court  of 
chancery,  where  it  was  thoroughly  argued.  In  examining  the  question 
under  consideration,  the  chancellor  said  that  it  could  not  be  seriously 
urged  that  when  a  parent  makes  an  advancement  to  his  child,  honestly 
and  fairly  retaining  in  his  own  hands  at  the  same  time,  property  sufficient 
to  pay  all  his  debts,  such  child  will  be  bound  to  refund  the  advancement, 
for  the  benefit  of  creditors,  if  it  afterwards  happens  that  the  parent  either 
by  misfortune  or  fraud  does  not  actually  pay  all  his  debts  which  existed 
at  the  time  of  the  advancement.  And  he  adds :  when  a  parent  makes  a 
voluntary  gift  or  conveyance  of  his  property  without  any  valuable  con- 
sideration, and  for  the  purpose  of  defrauding  creditors,  equity  may  well 
follow  it  into  the  hands  of  the  donee  for  the  benefit  of  the  creditors, 
although  such  donee  was  not  privy  to  the  intended  fraud.3  The  cause 
was  then  taken  by  appeal  to  the  court  of  errors,  where  the  decree  of  the 
chancellor  was  affirmed,  apparently  upon  the  ground  that  the  doctrine 
of  the  court  of  errors,  established  in  the  same  controversy,  in  the  eject 
ment  suit,  was  decisive  of  the  case.4 

The  fact  that  other  questions  than  the  one  under  consideration,  existed 
and  were  noticed  by  the  members  of  the  court  of  errors,  when  the  case 
of  Jackson  v.  Seward  was  before  them,  as  reported  in  eighth  Cowen,  has 
cast  some  doubt  as  to  the  extent  to  which  the  doctrine  of  Chancellor  Kent, 
in  Rcadc  v.  Livingston,  has  been  shaken.     The  opinions,  on  this  point, 


1  Per  Spencer,  in  Seward  v.  Jackson,  8        a  Van  Wyck  v.  Seward,  1  Ed.  Ch.  327 
Cowen,  430.     Jackson  v.  Peck,  4  "Wend.        3  Van  Wyck  v.  Seward,  6  Paige,  67 
SCO.  *  S.  C.  18  Wend.  376. 


232  Of  Fraud.  [Oh.  3 

by  the  supreme  court,  in  subsequent  cases,  become  therefore  important 
to  be  examined.  In  a  case  which  arose  shortly  after  the  decision  of  the 
court  of  errors,  the  same  question  was  again  brought  under  discussion.1 
On  this  branch  of  the  subject,  Sutherland,  J.,  in  delivering  the  opinion 
of  the  court,  said :  The  doctrine  of  voluntary  conveyances  has  recently 
been  very  fully  considered  in  the  court  of  errors,  in  the  case  of  Seward 
v.  Jackson, (  8  Cowen,  406,)  and  the  distinction  which  had  previously 
been  supposed  to  exist  between  fraud  in  law  and  fraud  in  fact  or  actual 
fraud,  appears  to  have  been  entirely  exploded.  The  language  of  Judge 
Thompson  in  Hinde's  Lessees  v.  Longworth,  (11  Wheaton,  213,)  and 
which  has  already  been  quoted,2  is  cited  by  Chancellor  Jones  and  Sena- 
tor Spencer  with  marked  approbation,  as  containing  a  clear  and  sound 
exposition  of  the  law  upon  this  subject.  The  language  of  the  learned 
judge  in  that  case,  it  will  be  remembered,  makes  the  question  of  fraud 
or  no  fraud  in  a  voluntary  conveyance  from  the  parent  to  a  child,  upon 
the  consideration  of  natural  love  and  affection,  a  question  of  fact  for  the 
jury,  and  not  of  law  for  the  court ;  and  that  it  treats  the  indebtedness 
of  the  father  at  the  time,  not  as  conclusive  evidence  of  fraud,  but  as  a 
badge  of  fraud,  open  to  explanation,  and  capable  of  being  repelled  by 
circumstances.  The  same  question  arose  in  the  same  court  in  a  still 
later  case,3  and  Avas  decided  the  same  way. 

The  same  question  has  also  arisen  in  the  court  of  chancery  since  the 
decision  in  Jackson  v.  Seward,  and  Van  Wyck  v.  Seward.  In  Wickes 
v.  Clarke,  a  bill  was  filed  by  judgment  creditors  of  the  husband  to  set 
aside  a  post  nuptial  settlement  by  the  husband  upon  his  wife  of  property 
which  came  to  her  by  descent  from  her  uncle,  upon  the  ground  that  it  was 
voluntary  and  not  upon  any  valuable  consideration.  The  cause  was  heard 
by  the  vice  chancellor  of  the  first  circuit.  On  this  branch  of  the  sub- 
ject the  vice  chancellor  said:  The  doctrine  that  a  voluntary  settlement 
after  marriage  by  a  person  indebted  at  the  time,  is  in  law  presumed  to  be 
fraudulent  and  void  against  all  such  antecedent  creditors,  without  regard 
to  the  amount  of  existing  debts,  or  the  extent  of  the  property  settled,  or 
the  circumstances  of  the  party;  and  that  no  circumstances  will  permit 
such  debts  to  be  affected  by  the  settlement,  or  repel  the  legal  presump- 
tion of  fraud,  as  stated  by  Chancellor  Kent  in  Reade  v.  Livingston,  as 
being  the  result  of  the  English  cases,  and  reiterated  by  him  in  Bayard  v. 
Hoffman,  (4  J.  Ch.  R.  450,)  has  undergone  some  modification  since,  by 
the  decision  of  the  court  of  errors  in  Seward  v.  Jackson,  (8  Cowen,  406.) 

1  Jackson  v.  Peck,  4  Wend.  303.  a  Jackson  v.  Zimmerman,  7  Wend.  43. 

*  Ante,  p.  230. 


Ch.  2.]  Fraudulent  Settlements.  233 

To  authorize  the  court  to  interfere  with  and  declare  a  voluntary  set- 
tlement void,  even  as  to  creditors  whose  debts  existed  when  the  deed  was 
made,  intentional  fraud  must  appear  ;  and  prior  indebtedness  is  but  a 
badge  or  argument  of  fraud,  which  may  be  explained  away  or  repelled 
by  circumstances.1  Although  the  decree  of  the  vice  chancellor  was  mod- 
ified by  the  chancellor,  it  was  not  upon  a  point  which  affect*  the  corrects 
ness  of  that  portion  of  his  opinion. 

When  the  case  of  Van  Wyck  v.  Seward  was  in  the  court  of  errors  on 
appeal  from  the  chancellor,  Mr.  Justice  Bronson  gave  an  elaborate  and 
able  opinion,  in  which  thirteen  senators  concurred,  in  favor  of  reversing 
the  decision  of  the  chancellor.  His  opinion  was  based  upon  several  other 
points,  not  necessary  to  be  noticed  at  this  time,  but  on  the  question  wheth- 
er the  doctrine  of  Chancellor  Kent,  in  Reade  v.  Livingston,  that  if  the 
party  be  indebted  at  the  time  of  the  voluntary  settlement,  it  is  to  be  'pre- 
sumed to  be  fraudulent  in  respect  to  such  debts,  and  that  no  circum- 
stances will  permit  those  debts  to  be  affected  by  the  settlement,  or  repel 
the  legal  presumption  of  fraud,  be  law,  the  learned  judge  remarks  : 
<:  that  the  rule  has  not  always  been  carried  to  that  extent,  and  he  was  not 
prepared  to  say,  that  the  language  of  the  chancellor  should  not  be  taken 
with  some  qualifications."2  Judge  Story,  in  his  learned  commentaries  on 
equity  jurisprudence,  reviews,  with  his  accustomed  industry  and  ability, 
the  cases  on  this  subject,  and  speaking  of  the  doctrine  of  Chancellor  Kent 
ir.  Reade  v.  Livingston,  says,  that  it  is  strictissimi  juris.  And  he  settles 
down  upon  the  conclusion  under  the  statute  of  the  13th  Eliz.,  that  mere 
indebtedness  at  the  time,  would  not,  per  se,  establish  that  a  voluntary 
conveyance  is  void,  even  as  to  existing  creditors,  unless  the  other  circum- 
stances of  the  case  justly  created  a  presumption  of  fraud,  actual  or  con- 
structive, from  the  condition,  state  and  rank  of  the  parties,  and  the  di- 
rect tendency  of  the  conveyance  to  impair  the  rights  of  creditors.3  And 
Chancellor  Kent,  in  a  note  to  his  commentaries,  admits  that  the  tendency 
of  the  decisions,  both  in  England  and  America,  is  in  the  same  direction, 
that  the  conclusion  of  fraud  is,  in  every  case,  to  be  left  to  a  common  jury.4  / 

From  the  foregoing  review  of  the  New- York  cases,  it  may  be  affirmed,  \ 
that  indebtedness  alone,  without  reference  to  its  amount  and  other  cir- 
cumstances, will  not  render  a  voluntary  conveyance  by  a  parent  to  a 
child,    fraudulent  and  void    as    against    existing   creditors,    and   much 
less  against   subsequent  creditors  ;  that  if  a  parent,  indebted  at   the 

1  Wickes  v.  Clarke,  8  Paige,  165.     See  5  Van  Wyok  v.  Seward,  18  Wend.  392. 

S.  P.,  The  Bank  U.  S.  v.  Houseman,   0  »  Story's  Cora.  Eq.  Juris.  §  860,  3C5. 

t  ai}ie.  526  *  2  Kent's  Coin.  442,  note. 

Eq.  Jur.  30 


234  Of  Fkaud.  [Ch.  3 

time,  makes  an  advancement  to  a  child,  and  retains  in  his  own  hands 
at  the  same  time,  property  sufficient  to  pay  all  his  debts,  the  child 
■will  not  be  bound  to  refund  the  advancement  for  the  benefit  of  cred- 
itors, should  it  afterwards  happen  that  the  parent,  either  by  misfortune  or 
fraud,  does  not  actually  pay  all  his  debts  which  existed  at  the  time  of 
the  advancement.'  If  it  be  shown  that  the  grantor  was  in  prosperous 
circumstances  and  unembarrassed,  though  indebted,  and  that  the  gift  to 
the  child  was  a  reasonable  provision,  according  to  his  state  and  condition 
in  life,  and  leaving  enough  for  the  payment  of  the  debts  of  the  grantor, 
these  circumstances,  in  the  absence  of  proof  of  an  actual  intention  to  de- 
fraud, will  repel  the  inference  of  fraud  resulting  from  the  want  of  a  valu 
able  consideration.  The  want  of  such  consideration  may  be,  and  doubtless 
is,  a  badge  of  fraud,  but  it  is  only  presumptive  and  not  conclusive  evi- 
dence, and  may  be  met  and  rebutted  by  evidence  on  the  other  side. 

This  doctrine  it  has  been  seen  is  in  conformity  to  the  construction  of 
the  statute  of  13  Elizabeth  by  the  supreme  court  of  the  United  States* 

It  is  not  denied  that  there  are  numerous  English  cases  sustaining  the 
doctrine  of  Chancellor  Kent  in  Reade  v.  Livingston.  They  are  ably  re- 
viewed by  him  and  by  Judge  Bronson  in  the  dissenting  opinion  in  Van 
Wyck  v.  Sewrard,  in  the  18th  Wendell.  The  English  courts  hold  the 
rule  more  strictly  in  favor  of  subsequent  purchasers,  than  in  favor  of 
creditors.  Thus,  in  one  case  it  was  held,  that  a  voluntary  settlement  of 
lands  made  in  consideration  of  natural  love  and  affection  is  void  as  against 
a  subsequent  purchaser,  for  a  valuable  consideration,  though  with  notice 
of  the  prior  settlement ;  and  though  the  settlor  had  other  property  at  the 
time  of  such  prior  settlement,  and  did  not  appear  to  be  then  indebted, 
and  there  was  no  fraud  in  fact  in  the  transaction.3  This  case  adopts  a 
more  severe  rule  than  has  ever  been  followed  in  this  state.  It  was  shown 
by  Judge  Spencer  in  Verplank  v.  Sterry, 4  that  the  rule  with  respect  to 
subsequent  purchasers  stands  in  principle,  upon  the  same  footing  as  the 
rule  as  to  creditors.  In  this  state,  it  is  a  waste  of  time  to  review  the 
cases  on  this  point,  since  the  revised  statutes  have  removed  the  distinc- 

*  Van  Wyck  v.  Seward,  6  Paige,  67.  chasers  or  creditors,  solely  on  the  ground 

8  Hinde's  Lessees   v.  Longworth,   1 1  that  it  was  not  founded  on  a  valuable 

"Wheat.  213.     Sexton  v.  Wheaton,  8  id.  consideration. 

229,  230.     Verplanck  v.  Sterry,  12  J.  R.  And  see  also  Frazer  v.  Western,  1  Barb. 

536,  556  558,  per  Spencer.     2  R.  S.  137,  Ch.  R.  220.    Jackson  v.  Post,  15  Wend. 

§  4,  which  makes  the  question  of  a  fraudu-  588.    Plank  v.  Schermerhorn,   3   Barb 

lent  intent,  a  question  of  fact  for  a  jury;  Ch.  R.  644. 

and  enacts  that  no  conveyance  or  charge  3  Doe  v.  Manning,  9  East,  59 

shall  be  adjudged  fraudulent  against  pur-  4  12  J.  R.  558. 


Ch.  3.]  Voluntary  Settlements.  235 

tion  between  them,  if  any  in  truth  existed,  and  placed  both  on  the  same 
footing.1 

The  doctrine  of  the  supreme  court  of  the  United  States,  and  of  the 
courts  of  this  state  on  the  subject  of  the  claims  of  creditors  against  vol- 
untary settlements,  is  in  accordance  with  that  of  Lord  Mansfield.  In  one 
case  -where  the  contest  was  between  a  creditor  and  the  party  holding  un- 
der a  voluntary  settlement,2  his  lordship  said,  such  a  construction  of  the 
etatutc  of  18  Eliz.  is  not  to  be  made  in  support  of  creditors,  as  will  make 
third  persons  sufferers.  Therefore,  the  statute  does  not  militate  against 
any  transaction  bona  fide,  and  when  there  is  no  imagination  of  fraud. 
And  so  is  the  common  law.  But  if  the  transaction  be  not  bona  jide,  the 
circumstance  of  its  being  done  for  a  valuable  consideration  will  not 
alone  take  it  out  of  the  statute.  And  in  another  case  where  the  question 
arose  between  a  purchaser,  and  a  party  claiming  under  a  settlement,3 
his  lordship  said,  the  statute  does  not  say  a  voluntary  settlement  shall 
be  void,  but  that  a  fraudulent  settlement  shall  be  void.  There  is  no 
part  of  the  act  of  parliament,  which  affects  voluntary  settlements  eo 
nomine  unless  they  are  fraudulent.  To  be  sure,  he  says,  it  is  very  dif- 
ficult against  fair  honest  creditors  to  support  a  voluntary  settlement,  and 
in  another  place  he  says,  one  great  circumstance  which  should  always  be 
attended  to  in  these  transactions,  is,  whether  the  person  was  indebted  at 
the  time  he  made  the  settlement ;  if  he  was,  it  is  a  strong  badge  of  fraud. 
But  he  nowhere  asserts  that  the  existence  of  an  indebtedness,  without 
reference  to  its  amount,  affords  a  conclusive  presumption  of  fraud. 

The  more  recent  decisions  in  England,  it  has  already  been  said,  are 
vibrating  towards  those  made  nearest  to  the  time  of  the  statute.  In 
one  of  the  late  cases,4  Lord  Langdale  said  he  could  not  think  the  real  and 
just  construction  of  the  statute  warranted  the  proposition  that  the  exist- 
ence of  any  debt  at  the  time  of  the  execution  of  the  deed  would  be 
such  evidence  of  a  fraudulent  intention  as  to  induce  the  court  to  set  aside 
a  voluntary  conveyance  under  the  statute  of  Elizabeth.  A  man  may  in- 
ter.d  to  pay  every  debt  as  soon  as  it  is  contracted,  and  constantly  use  his 

1  2  R.  S.  137,  §  4.     Reviser's  notes  on  only  upon  a  conveyance  of  the  specific 

this  section,  3  id.  658,  2d  ed.     It  was  said  property  in  controversy,  and  in  confidence 

by  Gould,  J.   in  Salmon  v.  Bennett,  1  of  acquiring  an  immediate  title  to  it,  are 

Conn.  R.  557,  that  purchasers  have  always  regarded  as  having  a  higher  equity  than 

been  more  favored  in  the  construction  of  general  creditors, 

the  statute  27  Eliz.  than  creditors  under  a  Cadogan  v.  Kennett,  Cowp.  434. 

the  13  Eliz.     Purchasers  not  having  trust-  3  Doe  v.  Routledge,  id.  705. 

ed  to  the  personal  responsibility  of  the  *  Townsend  v.  "Westacott,  2  Beav.  344. 
(f -an tor,  but  having  advanced  their  money 


236  Of  Fraud.  [Oh.  3. 

best  endeavors,  and  have  ample  means  to  do  so,  ana  jet  be  frequently 
indebted  in  some  small  sum  ;  there  may  be  a*  withholding  of  claims, 
contrary  to  his  intention,  by  which  he  is  kept  indebted  in  spite  of  him- 
self; it  would  be  idle  to  allege  this  as  the  least  foundation  for  assuming 
fraud  or  any  bad  intention.  On  the  other  hand,  he  thought  it  inconsistent 
with  the  principles  of  the  act,  and  with  the  judgments  of  the  most  emi 
nent  men,  to  require  something  amounting  to  insolvency  to  be  proved  in 
order  to  set  aside  a  voluntary  conveyance.  It  seems  to  follow  from  this 
reasoning,  that  in  his  lordship's  opinion,  the  indebtedness  of  a  man  who 
has  ample  means  to  pay  all  his  debts,  lays  no  foundation  alone  for 
presuming  fraud.  To  raise  that  presumption  there  must  be  a  larger 
indebtedness,  though  not  a  present  insolvency  ;  but  an  indebtedness  so 
disproportionate  to  his  means  as  to  raise  the  inference  of  bad  faith,  in 
the  voluntary  conveyance. 

The  doctrine  held  by  the  supreme  court  of  errors  of  Connecticut  in  a 
case  decided  in  1816,  coincides  with  that  at  present  held  in  this  state.' 
In  that  case,  where  a  conveyance  was  made  to  a  child,  in  consideration  of 
natural  affection,  without  any  fraudulent  intent  at  a  time  when  the  grant- 
or was  free  from  embarrassment,  the  gift  constituting  but  a  small  part  of 
his  estate  and  being  a  reasonable  provision  for  the  child,  it  was  held  that 
such  conveyance  Avas  valid  against  a  creditor  of  the  grantor,  whose  claim 
existed  when  the  conveyance  was  made. 

The  learned  chief  justice  in  delivering  the  opinion  of  the  court  said  : 
"  In  order  to  enable  parents  to  make  a  suitable  provision  for  their  chil- 
dren, and  to  prevent  them  from  defrauding  creditors,  these  principles 
have  been  adopted,  which  appear  to  be  founded  in  good  policy :  When 
there  is  no  actual  fraudulent  intent,  and  a  voluntary  conveyance  is  made 
to  a  child  in  consideration  of  love  and  affection,  if  the  grantor  is  in  pros- 
perous circumstances,  unembarrassed,  and  not  considerably  indebted,  and 
the  gift  is  a  reasonable  provision  for  the  child  according  to  his  state  and 
condition  in  life,  comprehending  but  a  small  portion  of  his  estate,  leaving 
ample  funds  unencumbered  for  the  payment  of  the  grantor's  debts  :  then 
such  conveyance  will  be  valid  against  conveyances  existing  at  the  time. 
But  though  there  be  no  fraudulent  intent,  yet  if  the  grantor  was  consid- 
erably indebted  and  embarrassed,  at  the  time,  and  on  the  eve  of  a  bank- 
ruptcy ;  or  if  the  value  of  the  gift  be  unreasonable  considering  the  con- 
dition in  life  of  the  grantor,  disproportioned  to  his  property,  and  leaving 
a  scanty  provision  for  the  payment  of  his  debts  ;  then  such  conveyance 
will  be  void  as  to  creditors."     And  Gould.  J.  said,  "  As  to  creditors,  the 

1  Salmon  v.   Bennett,  1  Conn.  II.  52o. 


Ch.  3j  As  to  Choses  in  Action.  237 

want  of  a  valuable  consideration  may  be  under  circumstances,  a  b.ifl^i 
of  fraud ;  but  does  not  per  se,  render  the  conveyance  fraudulent."1 

There  is  a  question  which  has  been  agitated  in  the  English  courts, 
whether  the  statute  of  13  Eliz.  extends  to  voluntary  settlements  of 
property  which  a  creditor  could  not  reach  by  a  common  law  execution, 
such  as  choses  in  action,  bank  stock  and  the  like ;  and  the  opinion  seems 
to  be  that  in  order  to  make  a  voluntary  conveyance  void  as  to  creditors, 
either  existing  or  subsequent,  it  is  indispensable  that  it  should  transfer 
property,  liable  to  be  taken  in  execution.2  The  difficulty  of  reaching 
that  species  of  personal  property  was  discussed  and  considered  by  Chan- 
cellor Kent  in  Bayard  v.  Hoffman.3  The  cases  were  found  to  be  contra- 
dictory, and  the  question  unsettled.  The  early  cases  in  the  time  of  Lord 
Ilardwicke  favored  the  doctrine,  that  personal  propert}',  not  tangible  by 
an  execution  at  law,  could  be  reached  by  the  assistance  of  a  court  of 
equity.  The  later  cases,  in  the  time  of  Lord  Thurlow  and  Lord  Eldon, 
were  the  other  way.  In  a  subsequent  case,4  a  judgment  creditor  who 
had  issued  an  execution  which  had  been  returned  nulla  bona,  was  held  to 
have  acquired  a  priority  of  right  to  the  property  of  his  debtor,  in  the 
hands  of  a  trustee,  and  was  thus  aided  by  the  court  in  obtaining  satis- 
faction of  his  judgment  out  of  property  which  could  not  have  been  seized 
by  the  sheriff.  That  case  was  affirmed  on  appeal  by  the  court  of  errors.5 
The  doctrine  of  that  case  was  limited  to  cases  of  fraud,  or  trust.  &c.  by 
the  subsequent  case  of  Donovan  v.  Finn.6  But  the  New-York  Revised 
Statutes  of  1830  enacted  the  principle  contained  in  Hadden  v.  Spader, 
and  conferred  upon  the  court  of  chancery  ample  power  over  the  choses 
in  action  of  the  judgment  debtor,  in  favor  of  the  creditor  who  had 
exhausted  his  remedy  at  law.7  Under  this  provision,  it  has  become  the 
practice  of  a  court  of  equity  to  decree  satisfaction  of  the  plaintiff's  debt 
out  of  any  personal  property,  money  or  things  in  action,  belonging  to  the 


1  It  is  not  deemed  expedient  to  pursue  doctrine  of  the  chancellor  in  that  case, 

this  branch  of  the  suhject  more  at  large.  Also,  see  2  Kent's  Com.  440  et  seq.  and 

He  who  wishes  to  examine  it  more  fully  notes,  and  4  id.  4G3. 
will  find  the  cases  collected,  and  many        2  Atherly   on    Marriage    Settlements 

valuable  remarks,  in  1  Fonb.  Eq.  B.  1,  ch.  220.     1  Rob.  on  Fraud.  Conv.  .421,  422 

4,  §  12,  and  notes.     He  will  find  the  cases  Dundas  v.  Duten,  1  Yes.  jr.  190. 
cited  aud  relied  on  by  Kent,   Ch.,   in        3  4  J.  Ch.  R.  450. 
Reade  v.  Livingston,  3  J.  Ch.  500,  col-        "  Spader  v.  Davis  &  Hadden.  5  id.  280. 
lated  and  reviewed  in  a  note  to  Story's        6  Hadden  v.  Spader,  20  J.  R.  554. 
Eq.  Juris,  under  §  363,  and  a  doubt  ex-        6  1  Ilopk.  59. 
pressed  whether  they  fully  sustained  the        '  2  R.  S.  173,  §§  38,  39. 


238  Of  Fraud.  [Ch.  3. 

defendant,  or  held  in  trust  for  him,  whether  the  same  were  originally 
liable  to  be  taken  in  execution  or  not.  The  code  of  procedure,  moreover, 
has  given  a  far  wider  scope  to  an  execution  upon  a  judgment  against  the 
property  of  the  debtor,  than  existed  formerly.  It  authorizes  the  seizure 
by  the  sheriff,  not  only  of  tangible  property,  but  also  of  money,  things 
in  action,  and  evidences  of  debt.1  And  it  has  provided  stringent  and 
summary  proceedings  for  reaching  the  equitable  interests  of  the  debtor, 
and  making  them  available  to  the  creditor.2 

As  the  reason  on  which  the  English  courts  have  declined  interfering 
in  favor  of  the  creditor,  with  respect  to  property  not  liable  to  be  seized 
under  an  execution,  at  common  law,  do  not  exist  in  this  state ;  and  as  the 
right  of  the  creditor  to  reach  the  debtor's  choses  in  action,  either  by  his 
execution  directly,  or  by  the  aid  of  the  equitable  powers  of  the  court,  is 
perfect,  it  would  seem  that  a  fraudulent  conveyance  of  choses  in  action 
should  stand  on  the  same  footing  as  a  fraudulent  assignment  of  any  other 
property.  Such  assignment  forms  as  much  an  obstruction  to  the  remedy 
of  the  creditor,  as  an  assignment  of  tangible  property.  And  accordingly, 
in  this  state,  before  the  revised  statutes,  the  weight  of  authority  was  in 
favor  of  reaching,  through  the  aid  of  a  court  of  equity,  the  property  of 
the  debtor  which  could  not  be  taken  on  an  execution  at  law,  after  tho 
ordinary  remedy  at  law  was  exhausted.3 

The  non-existence  of  any  bankrupt  laws  in  this  state,  the  inefficiency 
of  the  insolvent  laws,  and  the  abolition  of  imprisonment  for  debt  in  1831, 4 
rendered  it  necessary,  in  order  to  protect  the  rights  of  creditors,  that 
some  more  efficient  mode,  than  existed  at  common  law,  should  be  devised 
for  reaching  the  equitable  rights  of  the  debtor,  and  to  make  them  avail- 
able to  the  creditor.  The  revised  statutes,  indeed,  preceded  the  act  to 
abolish  imprisonment  for  debt,  but  the  latter  was  doubtless  anticipated 
when  the  provisions  of  the  former  were  framed,  relative  to  the  seizure  of 
rights  in  action.  We  accordingly  find,  that  subsequent  to  the  revised 
statutes,  and  especially  after  imprisonment  for  debts  was  abolished,  the 
■aid  of  a  court  of  equity  was  very  extensively  used  in  favor  of  creditors, 

1  Ooae  of  Procedure,  §§  289,  463.  Edgell  v.  Haywood.  3  id.  352.  But  see  Do 

2  Id.  §  2~92  et  seq.  novan  v.  Finn,  Hopk.  59,  limiting  the  doc- 

3  Spader  v.  Davis,  5  J.  Ch.  E.  280,  af-  trine  to  cases  of  fraud,  trusts,  &c.  Chan- 
firmed  in  error,  20  J.  R.  554.  McDer-  cellor  "Walworth  evidently  preferred  the 
rnott  v.  Strong,  4  J.  Ch.  R.  687.  "Will-  doctrine  as  settled  by  Lord  Hardwicko 
iams  v.  Brown,  id  682.  Brinkerhoff  v.  to  that  as  modified  by  Lord  Thurlow  and 
Brown,  id.  671.     Egbert  v.  Pemberton,  Lord  Eldou. 

7  id.  207.     Candler  v.  Petit,  1  Paige,  168,        4  Laws  of  1831,  pi  396. 
following  Taylor  v.  Jones,  2  Atk.  600. 


Ch.  3.J  As  to  Choses  in  Action.  239 

whose  executions  at  law  were  returned  unsatisfied,  in  whole  or  in  part. 
So  far  from  being  confined  to  avoiding  conveyances  of  tangible  property, 
it  was  more  frequently  employed  in  aiding  the  creditor,  in  reaching  prop- 
erty which  an  execution  at  law  could  not  take.  The  judgment  creditor 
was  held  to  acquire  a  specific  lien  upon  the  equitable  property  which  be- 
longed to  the  defendant,  at  the  time  of  filing  his  bill,  or  upon  the  pro- 
ceeds thereof.1 

A  court  of  equity  enabled  the  judgment  creditor  to  reach  the  defend- 
ant's residuary  interest  as  a  copartner  in  the  effects  of  the  firm,2  to 
reach  the  husband's  interest  as  tenant  by  the  curtesy  initiate,  in  a  fund 
produced  by  a  sale  in  partition  of  his  wife's  interest  in  land  ;3  to  reach 
a  right  of  dower,  before  the  same  had  been  set  out  and  while  it  was  still 
a  right  in  action  merely  ;4  to  reach  an  annuity  given  by  will  in  lieu  of 
dower  ;5  and  an  absolute  legacy,  though  the  will  declared  it  should  not 
be  liable  for  the  legatee's  debts  ;6  to  reach  the  rents  and  profits  of  the 
debtor's  real  estate  sold  upon  execution,  for  the  fifteen  months'  possession 
after  the  sale  to  which  he  was  entitled  by  law  ;7  and  an  interest  as  next 
of  kin  in  the  personal  estate  of  a  decedent  ;3  to  reach  the  debtor's  inter- 
est in  a  contract  for  the  purchase  of  land  ;9  to  reach  the  interest  of  a 
vendee  who  had  paid  for  the  land  ;10  to  reach  the  beneficial  interest  of 
the  debtor  in  the  income  of  a  fund  for  his  support,  under  a  valid  trust 
created  before  the  revised  statutes  ;  but  not  to  the  principal,  or  any 
part  of  the  principal  of  the  fund."  These  principles  remain  unchanged 
by  any  subsequent  legislation. 

But  there  are  some  things  which  could  not  be  reached,  and  which  can 
not  now  be  reached,  by  the  aid  of  a  court  of  equity.  Thus,  for  example, 
the  creditor  cannot  reach  by  a  creditor's  bill,  a  salary  not  yet  earned  and 
due.  but  he  can  reach  a  salary  earned  before  filing  the  bill,  though  not 
payable.12  He  cannot  reach  a  right  of  action  for  a  conversion  of  property 
exempt  from  execution,  nor  fur  a  personal  tort  ;  but  he  can  reach 
such  right  of  action,  for  the  destruction  or  injury  of  property  liable  to 
execution;13  he  cannot  reach  a  mere  possibility,  as  a  right  one  may  ac- 

'  Eager  v.  Price,  2  Paige,  333.     Corn-  6  Degraw  v.  Classon,  11  Paige,  136. 

ing  v.  White,  2  id.  567.     Fitch  v.  Smith,  6  Hallett  v.  Thompson,  5  id.  583. 

10  id.  9.      See  Lynch  v.  Utica  Ins.  Co   18  '  Farnham  v.  Campbell,  10  id.  598. 

Wend.  236,  as  to  the  preference  given  to  8  McArthur  v.  Hoysradt,  11  id.  495 

judgment  creditors  over  the  assignee  of  °  Ellsworth  v.  Ciiyler,  9  id.  418. 

the  debtor.  |0  "Watson  v.  Le  Row,  6  Barb.  481. 

a  Eager  v.  Price,  2  Paige,  333.  u  Bryan   v.    Knickerbocker,    1    Barb 

3  Ellsworth  v.  Cook,  8  id.  643.  Ch.  R.  409. 

*  Tompkins  v.  Fonda,  4  id.  448.  "  Browning  v.  Pettis,  8  Paige,  568. 

Stewart  v.  McMartin,  4  Barb.  438.  '3  Hudson  v.  Plets,  11  id.  180. 


240  Of  Fraud.  [Ch.  3. 

quire  in  an  estate  as  next  of  kin  ;'  nor  can  lie  reach  personal  property  of 
the  deceased  in  the  hands  of  the  next  of  kin  ;2  nor  real  estate,  nor  equi- 
table interests  descended  to  the  heirs.3 

Although  the  act  to  abolish  imprisonment  for  debt4  and  the  code  of 
procedure  contain5  provisions  for  a  summary  proceeding  against  the 
debtor,  on  the  return  of  an  execution  unsatisfied,  in  whole  or  in  part,  to 
compel  the  application  of  his  property  and  rights  in  action  to  the  judg- 
ment, yet  these  provisions  are  merely  cumulative  and  not  exclusive ;  and 
do  not  take  away  the  right  of  the  creditor  to  resort  to  a  court  of  equit) 
for  relief.  When  the  amount  of  the  debt  is  small,  and  the  transaction 
is  not  complicated,  the  summary  remedy  thus  provided,  is  adequate  ami 
satisfactory.  But  the  obstructions  to  the  claims  of  the  creditor  aro 
sometimes  so  artfully  contrived,  and  surrounded  by  such  plausible  ap- 
pearances of  fairness,  that  they  cannot  be  effectually  encountered  and 
removed  but  by  the  agency  of  a  court  of  equity.  An  action,  in  the 
nature  of  a  creditors  bill,  is  still  as  important  and  necessary  as  it  was 
before  the  code,  and  the  principles  of  equity  on  which  that  bill  was  based, 
remain  now,  as  heretofore,  an  essential  part  of  our  system  of  remedial 
justice. 

A  voluntary  conveyance,  though  void  as  against  creditors  and  bona 
fide  purchasers,  is  still  good  between  the  parties,  and  their  personal  rep- 
resentatives.6 As  between  the  parties,  they  are  expressly  excluded  from 
the  operation  of  the  statute,  and  are  left  as  they  stood  at  the  common 
law.  Before  the  statute,  the  heir  could  never  set  up  his  title  against  the 
voluntary  alienee  of  his  ancestor,  nor  call  upon  him  for  contribution,  when 
both  were  amenable  to  the  creditors  of  the  ancestor  as  tertenants ;  nor 
would  courts  of  equity  assist  the  party  making  a  voluntary  conveyance, 
or  his  representative  claiming  as  such,  by  setting  them  aside.7  But 
since  the  revised  statutes,  an  executor  or  administrator  may,  for  the  ben- 
efit of  the  creditors  of  their  testator  or  intestate,  avoid  a  sale  or  assign- 
ment of  the  party  whom  they  represent,  made  to  defraud  creditors.5  In 
this  respect,  with  us,  the  executors  and  administrators  represent  the  rights 
of  creditors,  in  like  manner  as  the  assignee  of  a  bankrupt,  or  of  an  in 
solvent  debtor.9 


1  Smith  v.  Kearny,  2  Barb.  Ch.  R.  533.        7  Id.     Osborne  v.  Moss,  7  J.  R.   161. 

-  Wilber  v.  Collier,  id.  427.  Randall  v.  Philips,  3  Mason's  R.  378. 

8  Id.  8  Babcock  v.  Booth,  2  Hill,  181.     Dor 

4  Laws  of  1831,  p.  396.  v.  Backenstose,  12  Wend.  543.  McKnight 

•  Code  of  Procedure,  292  et  seq.  v.  Morgan,  2  Barb.  S.  C.  R.  171. 

0  Jackson  v.  Garnsey.   16  J.  R.  189.        »  Doe  v.  Ball,  11  M.  &  W.  581 
Jackson  v,  Caldwell,  1  Cowen.  622. 


nil.  3.]        Ik  Fraud  of  Creditors  and  Purchasers.  241 

We  pass  now  to  another  class  of  assignments,  or  conveyances,  either 
absolute  or  by  way  of  mortgage,  which  a  court  of  equity  will  aid  creditors 
or  subsequent  purchasers  in  good  faith,  to  avoid  on  the  ground  either  of 
actual  or  constructive  fraud.  Such  conveyances  may  be  void  because 
made  with  the  intent  to  defraud  ;  and  they  may  be  void  as  against  cred- 
itors, without  proof  of  moral  fraud,  if  they  fail  to  conform  to  the  require- 
ments of  the  common  law,  or  the  provisions  of  the  statute.  Cases  of 
intentional  fraud  are  not  now  under  review.  The  points  which  have 
most  frequently  been  litigated,  with  respect  to  the  validity,  as  against 
creditors,  of  assignments  of  personal  property,  have  arisen  on  the  con- 
tinued possession  of  the  grantor,  subsequent  to  the  sale,  and  the  want 
of  consideration. 

The  early  cases  in  New- York,  treated  the  non-delivery  of  goods  at  the 
time  of  the  sale  or  mortgage,  as  only  prima  facie  evidence  of  fraud,  and 
susceptible  of  explanation.1  In  a  later  case,  decided  in  1812,  the  subject 
underwent  a  more  thorough  examination,  and  the  English  and  American 
cases  were  extensively  collected  and  reviewed  by  the  then  Chief  Justice 
Kent.2  And  he  came  to  the  conclusion  that  a  voluntary  sale  of  chattels, 
with  an  agreement  either  in  or  out  of  the  deed,  that  the  vendor  may  keep 
possession,  is,  except  in  special  cases,  and  for  special  reasons,  to  be  shown 
to,  and  approved  of,  by  the  court,  fraudulent  and  void  as  against  credit* 
ors.  He  considered  fraud  as  a  question  of  law,  when  there  was  no  dis- 
pute about  the  facts.  He  termed  it  the  judgment  of  the  law  on  facts  and 
intents.  This  case  was  professedly  based  upon  Edwards  v.  Harben,  (2 
T.  B.  587;)  (Hamilton  v.  Russell,  1  Cranch,  309;)  and  those  of  a  kin- 
dred character.  In  a  case  decided  by  the  supreme  court  in  1821,  Chief 
Justice  Spencer  spoke  of  the  retaining  possession  by  the  vendor  as  indi- 
cative of  fraud,  and  thus  leaving  it  uncertain  whether  the  want  of  a  change 
of  possession  was  prima  facie  or  conclusive  evidence  of  fraud.3  And 
in  a  later  case,  decided  in  1824,  Chief  Justice  Savage  treated  the  retaining 
pf  possession  by  the  mortgagor  or  vendor,  as  only  prima  facie  evidence 
of  fraud,  and  open  to  explanation  ;4  a  doctrine  to  which  he  ever  after- 
wards adhered.5 

The  fluctuating  state  of  the  decisions  upon  this,  and  some  other  points, 
in  relation  to  sales,  led  the  legislature,  at  the  time  the  statutes  were  under- 
going a  revision,  to  put  the  question  at  rest  by  legislative  enactment.     And 

'  Beals  v.  Guernsey,  8  J.  R.  440.    Bar-  *  Divver  v.  McLaughlin,  2  Wend.  500. 

row  v.  Paxter,  5  id.  258.  Hall  v.  Tattle,  8  id.  378.     In  the  lattei 

'  Sturtevant  v.  Ballard,  9  id.  337.  case  is  an  ahle  and  extensive  review  of 

s  Liiullow  v.  Hurd,  19  id.  222.  the  cases  on  this  subject. 

sell  v.  Hopkins,  3  Cowen,  188. 
Eq.  Jlr.  31 


242  Of  Fraud.  [Ch.  a 

for  this  purpose  they  enacted,  that  every  sale  made  by  a  vendor  of  goods 
arid  chattels  in  his  possession  or  under  his  control,  and  every  assignment  of 
goods  and  chattels,  by  'way  of  mortgage  or  security,  or  upon  any  condi- 
tion whatever,  unless  the  same  be  accompanied  by  an  immediate  deliv- 
ery, and  be  followed  by  an  actual  and  continued  change  of  possession,  of 
the  things  sold,  mortgaged  or  assigned,  shall  be  presumed  to  be  fraudu- 
lent and  void  as  against  the  creditors  of  the  vendor,  or  the  creditors  of 
the  person  making  such  assignment,  or  subsequent  purchasers  in  good 
faith ;  and  shall  be  conclusive  evidence  of  fraud,  unless  it  shall  be  made 
to  appear,  on  the  part  of  the  persons  claiming  under  such  sale  or  assign- 
ment, that  the  same  was  made  in  good  faith,  and  without  any  intent  to 
defraud  such  creditors  or  purchasers.1  A  subsequent  section  makes  the 
question  of  fraudulent  intent,  in  all  cases  under  the  provisions  of  that 
chapter,  a  question  of  fact  and  not  of  law  ;  and  forbids  that  a  conveyance 
or  charge  should  be  adjudged  fraudulent  as  against  creditors  or  purcha- 
sers, solely  on  the  ground  that  it  was  not  founded  on  a  valuable  consid- 
eration.2 And  another  section3  provides  that  the  title  of  a  purchaser  for 
a  valuable  consideration,  shall  not  be  affected  or  impaired,  by  the  provis- 
ions of  this  chapter,  unless  it  shall  appear,  that  such  purchaser  had  pre- 
vious notice  of  the  fraudulent  intent  of  his  immediate  grantor,  or  of  the 
fraud  rendering  void  the  title  of  such  grantor. 

The  object  of  the  statute  was,  as  can  be  gathered  from  the  notes  of  the 
revisers,  to  adopt  the  doctrine  of  Chief  Justice  Kent,  in  Sturtevant  v. 
Ballard,  and  to  substitute  an  artificial  presumption  of  fraud,  arising  from 
the  continued  possession  of  the  vendor  or  mortgagor,  for  the  proof  of 
actual  fraud  ;  and  to  make  that  presumption  conclusive  evidence  of  fraud, 
unless  the  person  claiming  under  the  sale  or  assignment  should  make  it 
appear  that  the  same  was  made  in  good  faith,  and  without  any  intent  to 
defraud  creditors  or  purchasers.  The  burden  of  proof,  in  a  case  falling 
within  the  statute,  was  thus  shifted  from  the  creditor,  who  at  common 
law  would  have  had  to  establish  the  fraud,  to  the  party  claiming  under 
the  sale  or  mortgage,  who  was  now  required  to  repel  the  presumption  of 
fraud,  arising  from  an  unchanged  possession  of  the  subject,  by  proof  of 
good  faith  and  an  absence  of  an  intention  to  defraud.4  So  far  as  the  stat- 
ute introduced  a  new  rule  of  evidence,  it  was  an  innovation  upon  the 
common  law. 

A  distinction  had  formerly  been  held  to  exist  between  an  absolute  sale, 

1  2  K.  S.  136,  §  5.  *  Gardner  v.  Adams,  12  TV  end.  299 

1  Id.  p.  13T,  §  4.  per  Savage,  Ch.  J. 

T<*.  §  5. 


Ch.  3.J  Fraudtjlext  Sales.  243 

and  a  sale  by  way  of  mortgage,  and  a  more  strict  rule  with  regard  to  the 
necessity  of  a  change  of  possession  was  adopted  in  the  former  than  in 
the  latter  case.1  This  distinction  was  abrogated  by  the  statute ;  and  an 
absolute  sale-,  and  a  sale  or  assignment  by  way  of  mortgage,  were  placed 
upon  the  same  footing.2 

Although  the  statute  was  intended  by  the  legislature  to  put  an  end  to 
the  various  questions  which  had  so  long  been  agitated  in  the  courts,  on 
this  fruitful  subject  of  litigation,  yet  experience  has  shown  that  that  de- 
sirable olject  has  not  been  accomplished.  And  it  is  believed  that  the 
decisions  of  the  courts  have  been  more  fluctuating  and  contradictor}'  since, 
than  they  were  before  the  statute  was  enacted.  A  history  of  the  decis- 
ions on  this  subject,  would  perhaps  be  interesting  and  instructive,  but  it 
docs  not  seem  to  be  appropriate  to  a  treatise  on  equity  jurisprudence. 
There  can  be  no  doubt  that  a  court  of  equity  can  afford  relief  against  a 
fraudulent  sale  or  mortgage  of  chattels  in  all  cases,  remediable  at  law,  and 
in  many  cases,  in  which  a  court  of  law  is  inadequate  to  afford  redress. 
As  equity  in  general  follows  the  law,  it  may  be  expedient  to  say,  that  the 
present  course  of  the  decisions  of  the  New- York  courts  of  law,  with  re- 
spect to  the  effect  of  the  continuance  of  the  possession  of  the  vendor  or 
_-:igor,  after  the  sale  or  mortgage,  is,  that  it  is  merely  evidence  of 
fraud,  which  may  be  explained  ;  that  the  explanation  must  be  passed  upon 
by  the  jury  •  and  that  i*  :«  not  competent  for  the  court  to  direct  them  to 
find  fraud,  at  all  events,  from  the  non-delivery  of  the  property  alone.  But 
[{  is  their  duty  to  instruct  them,  that  the  continuance  of  possession  of  the 
v,  h  lor  or  mortgagor,  is  a  circumstance  from  which  they  may  find  fraud, 
if  such  continued  possession  l>e  not  satisfactorily  explained,3 

1  Harrow  v.  Paxton,  5  J.  R.  258.     Bis-  The  decisions  of  the  English  courts 

sell  v.  Hopkins,  3   Cowen,  166.     Marsh  have  undergone  a  like  fluctuation  since 

v.   Lawrence,    4  id.   461.     Ferguson    v.  Edwards  v.  Ilarben,  2  T.  R.  587;  and 

The  Union  Fire  Ins.  Co.  9  Wend.  345.  according   to   the   later  cases,  the  rule 

•  -  R.  S.  130,  §  5.  seems  to  be,  that  the  question  of  fraud, 

*  Hall  v.  Tuttle,  8  "Wend.  375.  Cole  v.  arising  from  the  retention  of  possession, 
White,  26  id.  511.  Stodard  v.  Butler,  on  a  sale  or  mortgage  of  chattels,  is  not 
M  i  1.  507.  Ilanford  v.  Artcher,  4  Hill,  an  absolute  inference  of  law,  but  one  of 
271.  Vance  v.  Philips,  6  id.  533.  Smith  fact  for  the  jury;  and  if  the  personal 
&  Hoe  v.  Acker,  23  Wend.  653.  Butler  chattels  savor  of  the  realty,  no  presump» 
v.  Miller.  1  Corast.  406.  Griswold  v.  tion  of  fraud  will  arise  from  the  want  of 
Bheldeo,  4  id.  597,  per  Mullett,  J,  concur-  delivery.  And  in  all  caves,  the  inference 
red  in  by  Gardiner,  Paige  and  Gray,  Jus-  of  fraud  arising  from  the  want  of  an  ac- 
tices.  tual  delivery  and  continued   change  of 

contra,  Doane  v.  Eddy,  16  Wend,  possession  may  be  rebutted,  by  explana- 
522.  Randall  v.  Cook,  17  id.  53.  Beck-  tions  showing  the  transaction  to  be  fai' 
man  v.  Bond.  19  id.  444.  and  honest.     See  Steward   v.  Lonibe    I 


i; 


244  Of  Fraud  [Ch.  3 

The  distinction  between  absolute  sales  and  mort^asres  of  chattels  hav- 
ing  been  abolished  by  the  revised  statutes  so  far  as  relates  to  the  neces- 
sity of  a  change  of  possession,  and  the  latter  having  been  to  a  considerable 
extent  adopted  as  a  mode  of  security,  it  was  found  necessary,  in  order  to 
give  publicity  to  the  transaction,  and  to  prevent  subsequent  purchasers 
and  creditors,  in  good  faith,  from  being  defrauded,  that  such  mortgages 
should  be  filed  in  the  clerk's  office  of  the  town  in  which  the  mort^a^or 
resided.  It  was  accordingly  enacted  in  1833,"  that  every  mortgage,  or  con 
veyance,  intended  to  operate  as  a  mortgage  of  goods  and  chattels  there 
after  made,  which  should  not  be  accompanied  by  an  immediate  delivery 
and  be  followed  by  an  actual  and  continued  change  of  possession  of  the 
things  mortgaged,  should  be  absolutely  void  as  against  the  creditors  of 
the  mortgagor,  and  as  against  subsequent  purchasers  and  mortgagees  in 
good  faith,  unless  the  mortgage,  or  a  true  copy  thereof,  should  be  filed  as 
directed  by  the  act.  If  the  mortgagor  be  a  resident  of  the  state,  the 
statute  requires  that  the  mortgage  shall  be  filed  in  the  town  where  he  re- 
sides ;  if  he  be  not  a  resident,  then  in  the  city  or  town  where  the  prop 
erty  so  mortgaged  shall  be  at  the  time  of  the  execution  thereof.  In  the 
city  of  New-York  such  instrument  is  required  to  be  filed  in  the  office  of 
the  register  of  the  city.  In  the  other  cities,  and  in  the  several  towns  of 
the  state  in  which  a  county  clerk's  office  is  kept,  in  such  office ;  and  ij> 
each  of  the  other  towns  in  this  state  in  the  office  of  the  town  clerks 
thereof;  and  such  register  and  clerks  were  required  to  file  such  instru- 
ments aforesaid  when  presented  to  them  respectively  for  that  purpose, 
and  to  indorse  thereon  the  time  of  receiving  the  same,  and  to  deposit  the 
same  in  their  respective  offices,  to  be  kept  there  for  the  inspection  of 
all  persons  interested.  In  a  subsequent  section,  it  is  enacted  that  every 
mortgage  filed  in  pursuance  of  the  act,  shall  cease  to  be  valid  as  against 
the  creditors  of  the  persons  making  the  same,  or  against  subsequent  pur- 
chasers or  mortgagees  in  good  faith,  after  the  expiration  of  one  year  from 
the  filing  thereof,  unless  within  thirty  days  next  preceding  the  expira- 
tion of  the  said  term  of  one  year,  a  true  copy  of  such  mortgage,  together 
with  a  statement  exhibiting  the  interest  of  the  mortgagee  in  the  property 
thereby  claimed  by  him  by  virtue  thereof,  shall  again  be  filed  in  the  office 

Brod.  &  Bing.  506.     Kidd  v.  Rawlinson,  Taunt.  838.     Dawson  v.  Wood,  3  id.  250. 

2  Bos.  &  Pol.  59.     TVatkins  v.  Burch,  4  Eeed  v.   Blades,    5  id.  212.     Storer  v. 

Taunt.. 823.     Lady  Arundell   v.  Phipps,  Hunter,  3  Barn.  &  Cress.  368.     Martiu- 

10  Yes.  145.     "Wooderman  v.  Baldock,  8  dale  v.  Booth,  3  Barn.  &  Adolpfc.  498. 

Taunt.  676.    Leonard  v.  Baker,  1  Maule  l  Laws  of  1833,  p.  402,  ch.  279. 
<fc  S.'lw.    251.     Jeseph  v.  Ingraham,  8 


Ch   3.J  Chattel  Mortgages.  245 

of  tlie  clerk  or  register  aforesaid,  of  the  town  or  city  -where  the  mort- 
gagor shall  then  reside. 

The  sfcitute  of  1833  does  not  repeal  the  provisions  of  the  revised  stat- 
utes as  to  the  sale  or  assignment  by  -way  of  mortgage  of  goods  and  chat- 
tels.1 It  adds  thereto  another  ground  on  which,  if  the  contingency 
happen,  such  mortgage  is  declared  void  as  against  creditors.2  The  object 
of  filing  the  mortgage,  as  was  said  by  Mullett,  J.  in  one  case,3  is  to  give 
notice  of  its  existence  to  all  persons  who  choose  to  inspect  it,  and,  when 
properly  filed  it  is  legal  presumptive  notice,  binding  on  all  persons  in- 
terested. 

If  there  be  a  defect  in  the  filing  of  the  mortgage,  or  the  filing  of  it  be 
entirely  omitted,  a  creditor  who  has  actual  notice  of  such  mortgage,  can- 
not impeach  the  validity  on  the  ground  of  such  omission.4  The  actual 
notice,  is  equivalent  to  the  constructive  notice,  provided  for  by  the  stat- 
ute. But  when  such  mortgage  was-  taken  upon  a  stock  of  goods,  and  was 
written  in  a  book  lettered  ':  Day  book,"  containing  an  inventory  of  the 
goods  and  store  accounts,  and  deposited  in  a  desk  in  the  clerk's  office 
where  personal  mortgages  were  kept  in  pigeon  holes,  it  was  left  in  doubt 
ny  the  court  of  appeals,5  Avhether  it  was  a  filing  of  the  mortgage  within 
the  act. 

Although  it  be  a  general  maxim  that  equality  among  creditors  is  equity, 
0  yet  the  courts  have  reluctantly  held  that  an  insolvent  debtor,  making  an 
assignment  of  his  property  for  the  payment  of  his  debts,  may  give  the 
preference  to  one  creditor  over  another,  in  cases  where  he  is  not  prohib- 
ited from  doing  so,  by  the  provisions  of  a  bankrupt  or  insolvent  law/ 

But  to  make  an  assignment  valid,  it  should  devote  the  whole  of  the 
property  of  the  assignor  to  the  payment  of  his  debts,  without  clogging  it 
with  any  terms  or  conditions,  or  making  any  provision  for  himself,  which 
will  impair  the  rights  of  his  creditors.7 

Accordingly  it  has  been  held  that  when  an  insolvent  debtor  assigns  all 
his  property  in  trust  to  pay  certain  specified  creditors,  and  then  without 
making  provisions  for  other  creditors,  in  trust  to  reconvey  the  residue  to 
the  debtor,  this  assignment  is  fraudulent  and  void  as  to  creditors  not  provi- 

1  2  R.  S.  186,  §  5.  4  S.  C.  in  supreme  court  on  the  second 

*  Wood  v.  Lowrey,  17  Wend.  405,  per  trial. 
Bronson,   J.      Smith    v.    Acker,    23    id.        6  Griswold  v.  Sheldon,  4  Comst.  580. 
G58,  per  Edwards,  senator.    But  see  Ben-        e  'Wintringham  v.  Lafoy,  7  Couren,  735. 

edict  v.  Smith,  10  Paige,  128,  remarks  of  Boardman  v.  llalliday,  10  Paige,  229,  per 

Walworth,  chancellor,  which  seem  to  be  Walworth,  Ch.     Grover  v.  "Wakeman,  11 

contra.  "Wend.  187. 

3  Griswold  v.  Sheldon,  4  Comst.  508.  7  Id. 


2>4fi  Of  Fraui*.  [Ch.  3 

ded  for  in  the  deed.'  This  provision,  in  favor  of  the  assignor,  is  not  onlj 
forbidden  by  the  express  terms  of  the  statute,2  but  is  contrary  to  th* 
principles  of  the  common  law.  A  trust  in  favor  of  the  assignor  of  goods 
and  chattels  was  one  of  the  badges  of  fraud  in  Twyners  case.3 

On  the  principle  that  an  assignment  or  sale  with  the  intent  to  hinder, 
delay  or  defraud  creditors,  is  expressly  forbidden  by  the  statute/  as  well 
as  by  the  common  lawr  any  provision  contained  in  such  assignment  which 
tends  to  that  result,  will  invalidate  the  instrument.  An  assignment,  in 
which,  by  the  terms  of  the  deed,  the  trustees  were  authorized  to  sell  the 
property  on  credit,  was  declared  by  the  court  of  appeals  to  be  void  againsfc 
creditors.5  The  chancellor  held  otherwise  in  one  case,6  and  the  doctrine 
has  been  controverted  in  the  New-York  superior  court.7  But  the  supreme 
court  has  repeatedly  decided  that  an  authority  in  an  assignment  to  sell 
upon  credit,  renders  the  assignment  void  as  against  creditors,  and  that 
doctrine  has  subsequently  been  reaffirmed  by  the  court  of  appeals.8 

On  the  same  principle,  an  assignment  that  makes  it  a  condition  that 
the  creditor  shall,  on  receiving  a  dividend,  execute  a  release  to  the 
debtor  of  all  claims  against  him,  whether  his  debt  be  paid  in  full  or  not, 
is  void  ;  and  being  void  in  part,  is  void  in  toto.9  So  an  assignment  con- 
taining a  provision  authorizing  the  assignee  in  his  discretion,  to  change 
the  order  of  the  preferences  given  therein  to  the  preferred  creditors, 
is  void.10 

An  assignment  in  trust  to  pay  debts  which  covers  real  and  personal 
property,  cannot  be  upheld  unless  the  trusts  be  such  as  are  authorized 
by  the  revised  statutes.  It  must  provide  for  debts  in  existence  at  the 
time  it  is  made,  and  not  for  debts  thereafter  to  be  created.  And  if  pre- 
ferences among  the  creditors  are  contemplated  to  be  made,  they  must  be 
declared  by  the  assignor  in  the  assignment  itself.  The  power  of  grant- 
ing preferences  cannot  be  delegated  by  the  assignor  to  the  trustees ;  nor 
can  an  authority  to  incmnber  property  by  a  mortgage  or  other  security, 
be  conferred  upon  the  trustees.     The  only  trust  authorized  by  the  revised 

1  Barney  v.  Griffin,  2  Comst.  365.  "Kellogg  v.   Slawson,    15  Barb.    60. 

s  2  R.  S.  135,  §  1.  Porter  v.  Clark,  5  How.  Pr.  R.  445,  de- 

s  3  Coke,  80.  cided  by  tbe  supreme  court,  3d  district, 

4  2  R.  S.  137,  §  1.  and  affirmed  unanimously  by  the  court 

6  Barney  v.  Griffin,  2  Comst.  365.  Nich-  of  appeals,  Dec.  T.  1853. 

olson  v.  Leavitt,  2  Selden,  510.  9  Grover  v.    Wakeman,  4  Paige,  23 

6  Rogers  v.  DeForest,  7  Paige,  272.  affirmed  on  appeal,  11  Wend.  187.  Good 

1  Nicholson  v.  Leavitt,  4  Sand.  8.  C.  R.  rich  v.  Downs,  6  Hill,  441. 

293  et  seq.,  reversed  by  court  of  appeals,  u  Strong  y.  Skinner,  4  Barb.  559. 

2  Seld.  510;  but  see  Meacham  v.  Siernes, 

9  Paige,  398,  contra. 


Oli.  3.J  Fraudulent  Assignments.  247 

statutes  in  this  respect,  is  a  trust  to  sell  lands  for  tlie  benefit  of  creat- 
ors ;'  and  if  a  trust  in  such  assignment  be  created,  for  any  purpose  net 
enumerated  in  the  statute,  no  estate  vests  in  the  trustee.2  These  princi- 
ples were  enforced  by  the  chancellor  in  an  important  case,  and  have  been 
repeatedly  acted  upon  in  setting  aside  assignments  in  courts  of  equity, 
in  behalf  of  the  execution  creditors  of  the  assignor. 

An  assignment  to  be  valid  must  be  for  a  lawful  purpose  and  must  be 
made  in  good  faith.  It  must  be  for  the  payment  of  such  debts  or  claims 
as  can  be  enforced  either  at  law  or  in  equity,  and  be  made  by  a  party 
insolvent,  or  believing  himself  to  be  insolvent  at  the  time.  The  remarks 
of  Chancellor  Walworth  on  this  subject,  in  a  recent  case,  present  in  a 
succinct  form,  some  of  the  leading  principles  in  this  class  of  cases.  In 
that  case,  he  held  that  an  assignment  for  the  benefit  of  creditors  was 
void  as  against  creditors,  because  it  attempted  to  appropriate  a  part  of 
the  assignor's  property  for  the  use  of  his  wife,  to  satisfy  an  alleged  claim 
in  her  favor,  which  she  could  not  have  recovered  from  the  assignor  by 
any  suit  or  proceeding  either  at  law  or  in  equity.  For  that  reason,  he 
observes,  if  the  property  of  the  assignor,  at  the  time  of  the  assignment, 
was  not  sufficient  to  pay  all  his  other  debts,  and  this  alleged  claim  also, 
or  so  much  of  it  as  was  attempted  to  be  secured  by  the  assignment,  then 
such  assignment  was  a  fraud  upon  the  creditors ;  inasmuch  as  it  would 
deprive  them  of  the  power  of  ever  obtaining  payment  of  the  whole  of 
their  debts.  On  the  contrary,  if  the  defendant  had  ample  property  to 
pay  all  his  debts,  including  the  debt  due  to  the  complainant,  then  it  was 
a  fraud  upon  his  creditors  to  assign  all  his  property  to  an  assignee,  and 
to  authorize  such  assignee  to  employ  the  proceeds  thereof  in  defending 
suits  which  might  be  brought  against  the  assignor,  by  his  creditors  to 
recover  their  several  debts.  For  it  is  equally  fraudulent,  under  the 
statute,  to  make  an  assignment  of  property  for  the  purpose  of  delaying 
creditors  in  the  collection  of  their  debts,  as  it  is  to  assign  it  for  the  pur- 
pose of  defeating  the  final  collection  of  such  debts.  And  this  provision 
of  the  assignment  could  have  been  inserted  for  no  other  reason  than  to 
enable  the  assignee  to  leave  the  property  in  the  possession  or  under  the 
control  of  the  assignor ;  and  thus  to  defend  suits  which  might  be  brought 
against  the  latter  to  obtain  possession  of  the  assigned  property,  and 
retain  the  expenses  of  such  defenses  out  of  the  proceeds  of  such  property. 


1  1  R.  S.  728,  §  55.  223.     Grover   v.    TTakeman,    11   Wend. 

2  Id.   §  58.     Barnum  v.  Hempstead,  7  403;  affirming  S.  C,  4  Paige,  23.  Strong 
Paige,  5G8.     Sheldon  v.  Dodge,  4  Denio,  v.  Skinner,  4  Barb.  559. 

217.     Boardman  v.   Hallidav,  10  Paige, 


248  Of  Fraud.  [Ch.  3. 

The  creditors  are  entitled  to  payment  in  cash  when  their  debts  become 
due.  And  when  a  man  has  ample  means  to  pay  all  his  debts  in  cash,  a3 
they  become  due,  there  seems  to  be  no  reason  for  making  a  general  assign- 
ment, and  giving  preferences,  except  for  the  purpose  of  delaying  the 
creditors  in  the  assertion  of  their  le^al  rights. 

The  power  in  an  assignment  to  lease  or  mortgage  the  estate  assigned 
has  been  held  also  void ;  and  the  reservation  of  the  right  of  the  assignee 
to  name  the  successor  of  the  trustee,  in  case  the  trustee  named  in  the 
assignment  wished  to  resign  the  trust,  has  also  been  said,  to  be  objec- 
tionable. For  it  might  deprive  the  court  of  the  power  to  remove  ths 
trustee  and  appoint  another  in  his  place,  upon  the  application  of  his  cred- 
itors. For  if  a  creditor  should  make  an  application  for  that  purpose,  the 
present  trustee,  with  the  assent  of  the  assignor,  might  immediately  sub- 
stitute another  in  his  place,  of  the  assignor's  own  selection ;  and  so  on 
from  time  to  time  as  often  as  the  trustee  should  be  liable  to  removal  by 
negleet  of  duty  to  the  creditors.1 

A  sale  of  goods  and  chattels  may  be  fraudulent  and  void  as  against 
creditors,  although  accompanied  with  an  actual  delivery  and  followed  by 
a  continued  change  of  possession.  It  depends  on  the  intent  of  the 
parties,  and  this  may  be  inferred  from  the  surrounding  circumstances. 
If  the  sale  be  by  a  party  insolvent  at  the  time,  to  a  relative  who  is  an  in- 
fant, and  no  security  be  taken  for  the  payment  of  the  consideration  of 
the  purchase,  except  the  infant's  promissory  notes,  and  if  the  vendor 
immediately  absconds  on  making  the  sale,  the  transaction  is  so  obviously 
fraudulent,  that  it  is  the  duty  of  the  court  to  grant  a  new  trial,  when  a 
jury  find  in  favor  of  the  validity  of  the  sale.2  The  foregoing  case  turned 
upon  the  question  of  actual  moral  fraud,  and  in  some  of  the  other  cases 
which  have  been  stated  intentional  fraud  appears  to  be  mingled  with  con- 
structive fraud. 

It  has  already  been  remarked  that  the  revised  statutes  place  the  cred- 
itors and  subsequent  bona  fide  purchasers  of  the  fraudulent  vendor,  in 
the  same  category,  a  fraudulent  sale  being  alike  void  as  to  both.3  A 
purchaser  without  notice,  and  a  creditor,  being  equally  meritorious  and 
equally  innocent,  the  first  in  title  is  to  be  preferred,  upon  the  well  known 
maxim  of  courts  of  equity;  Qui  prior  est  in  tempore,  portior  est  in 
jure.  But  a  subsequent  purchaser,  bona  fide  and  for  a  valuable  consid 
eration,  without  notice  of  a  previous  voluntary  or  fraudulent  grant,  will 

1  Planck  v.  Schermerhorn,  3  Barb.  Ch.        a  Vance  v.  Philip,  G  Hill,  433. 
R.  645.  646,  '  2  Pv.  S.  136,  §  5. 


Ch.  3. J  Purchase  with  Notice.  249 

be  protected  both  at  law  and  in  equity.1  But  though  he  will  thus  be 
protected,  when  prosecuted  by  a  party  having  no  greater  equity,  yet  he 
will  not  be  assisted  against  the  party  upon  whom  the  fraud  was  commit- 
ted s  Public  policy  requires  that  a  purchaser,  who  advances  his  money 
upon  the  faith  of  a  good  title  to  the  specific  thing,  and  without  notice  of 
any  adverse  claim,  should  not  be  postponed  to  a  prior  creditor  at  large, 
having  no  actual  lien. 

A  party  who  takes  a  conveyance,  with  notice  of  the  trust,  becomes 
himself  a  trustee,  unless  indeed  he  purchases  from  one  who  had  not  no- 
tice of  such  claim.  In  the  latter  case  be  may  protect  himself  by  want 
of  notice  in  his  vendor.3  A  purchaser  without  notice  from  one  who  has 
fraudulently  purchased,  is  not  affected  by  the  fraud  ;4  and  it  is  also  a  well 
settled  rule  of  equity,  that  a  man  who  is  a  purchaser,  with  notice  himself 
from  a  person  who  bought  without  notice,  may  protect  himself  under 
the  first  purchaser.5  The  reason  is  to  prevent  a  stagnation  of  propert}7-, 
and  because  the  first  purchaser  being  entitled  to  hold  and  enjoy,  must  be 
equally  entitled  to  sell. 

But  a  party  who  purchases  with  notice  of  the  legal  or  equitable  title 
of  another,  cannot  protect  himself  against  such  claim.  His  purchase 
with  notice  is  a  constructive  fraud  upon  the  rights  of  the  other  part}T, 
and  may,  in  some  cases,  be  an  actual  moral  fraud.  It  cannot  be  made 
available  to  defeat  the  just  rights  of  others,  but  his  title  will  be  made 
subservient  to  that  of  the  party  thus  sought  to  be  defrauded.  If  he  pur- 
chase from  a  trustee  with  notice  of  the  trust,  the  purchaser  will  himself 
be  treated  as  a  trustee,  if  it  be  necessary,  in  order  to  protect  the  rights 
of  others.6 

With  regard  to  what  shall  be  a  sufficient  notice,  it  has  been  held  that 
a  purchaser  who  has  sufficient  information  to  put  him  on  inquiry  is 
chargeable  in  equity  with  full  notice.7  Notice  of  an  equity  to  an  attor- 
ney employed  to  investigate  a  title,  is  notice  to  his  client,8  Notice  to 
an  agent  is  notice  to  the  principal.'     But  in  these  cases,  in  order  to  affect 

1  Maiden  v.  Merrill,  2  Atk.  8.  2  Fonb.  The  M.  Tank  v.  Louisa,  1  Peters,  309. 

Eq.  13.  2,  ch.  0,  §  2.     Beekman  v.  Frost,  2  Mad.  Ch.  125.     Murray  v.  Ballon,  1  J. 

18  J.  R.  544,  662.  Ch.  R.  566.     Murray  v.  Finster,  2  id.  158. 

1  Id.  Shepherd  v.  McEvers,  4  id.  136. 

8  2  Fonb.  Eq.  B.  2,  ch.  6,  §  2.  7  Green  v.  Slayter,   4  J.   Ch.   R.  46. 

Jackson  v.  Henry,  10  J.  R.  185.  2  Fonb.  Eq.  B.  2  ch.  6,  §§  3,  4,  and  notes. 

*  Demarest  v.  Wynkoop,  3  J.   Ch.   R.  Pendleton  v.  Fray,  2  Paige,  202. 

147.     Alexander  v.  Pendleton,  8  Craneh,  s  Griffith  v.  Griffith,  9  id.  315. 

402  9  The  M.  Bank  v.  Seton,  1  Peters,  309. 

"Gilchrist    v.   SleveiiMin,    SJ    Barb.    9. 

l^w-  J  lit  32 


2f>0  Of  Fraud.  [Oh.  3. 

the  principal  or  client,  the  notice  to  the  agent  or  attorney  must,  in  gen- 
eral, arise  in  the  same  transaction  to  -which  the  agency  applies.1  To 
make  the  notice  available,  it  must  be  shown  that  the  agent  had  authority 
to  receive  it,  and  the  natural  inference  is,  that  he  had  such  authority  if 
it  be  given,  or  arise  in  the  same  negotiation  or  business.  Where,  there- 
fore, to  an  action  brought  for  improperly  loading  a  cargo  of  timber, 
"whereby  it  was  lost,  the  answer  was,  that  it  had  been  so  loaded  with  the 
assent  of  the  plaintiff,  but  the  only  evidence  of  such  assent  was,  that  the 
plaintiff's  agent  knew  the  manner  in  which  it  had  been  loaded,  without 
having  made  any  objection  thereto ;  it  was  held  that  the  knowledge  and 
assent  of  the  plaintiff  could  not  be  inferred  from  that  fact,  as  it  was  not 
shown  that  the  agent  had  authority  to  interfere  with  the  loading  of  the 
timber  in  question.2 

The  reason  why  notice  to  the  agent  must  in  general  be  in  the  same 
transaction  in  order  to  affect  his  principal,  is,  not  only  that  otherwise  the 
agent  may  have  had  no  authority  to  receive  it,  but  also  that  he  may  not 
be  presumed  to  remember  what  was  casually  communicated  to  him,  when 
he  had  no  interest  to  remember  it.3  When  the  reason  ceases,  the  rule 
itself  ceases.  An  agent  must  be  presumed  to  remember  his  written  or 
printed  instructions,  and  those  who  deal  with  him  are  chargeable  with 
the  like  notice,4  for  they  can  peruse  the  instructions  and  judge  for  them- 
selves. And  when  one  transaction  is  closely  followed  by  and  connected 
with  another,  or  when  it  is  clear  that  a  previous  transaction  was  present 
to  the  mind  of  the  agent,  when  engaged  in  another  transaction,  there  is 
no  ground  for  the  distinction,  by  which  the  rule  that  notice  to  the  agent 
is  notice  to  the  principal,  has  been  restricted  to  the  same  transaction.5 

There  is  no  difference  between  personal  and  constructive  notice,  except 
as  to  guilt ;  for  if  there  were  it  would  produce  great  inconvenience,  and 
notice  would  be  avoided  in  every  case  by  employing  an  agent.  This 
principle  is  adopted  equally  at  law  and  in  equity.6 

With  regard  to  real  property,  if  the  vendee  be  in  possession  under  a 


1  Dunlap's  Paley  on  Agency,  263,  and  Hargraves   v.  Rothwell,  1  Keene,   154. 

cases  there  cited.    Bank  U.  S.  v.  Davis,  Perkins  v.  Bradley,  1  Hare,  230.   Mount- 

2  Hill,  461,  463.     Hiern  v.  Mill,  13  Ves.  ford  v.  Scott,  1  T.  &  R.  274. 

120.    Meoh.  Bank  of  Alexandria  v.  Se-  "  Sandford  v.  Handy,  23  Wend.  267. 

ton,  1   Peters,   309.    Warwick  v.  War-  North  River  Bank  v.  Aymar,  3  Hill,  263, 

wick,  3  Atk.  294.  266. 

"  Gould  v.  Oliver,  2  Scott  K  R.  241,  B  Hargraves    v.    Roth  well,   1    Keene, 

263.     Dunlap'e  Paley   on   Agency,  236,  154.  and  cases  cited  under  note  3. 

notes.  6  2  Scott,  N  R.  262.    McEwen  v.  The 

*  Warwick   v.  Warwick,  3  Atk.  294.  Mont.  Ins.  Co.  5  Hill,  101. 


Ch.  3.J  Notice,     Lis  Pendens.  251 

contract  to  purchase,  a  subsequent  purchaser  or  mortgagee  has  construct- 
ive notice  of  his  equitable  rights,  and  takes  the  land  subject  thereto.1 
On  this  principle,  a  defendant  cannot  set  up  that  he  is  a  bona  fide  pur- 
chaser, if  the  complainant  was  in  possession  at  the  time  of  the  purchase, 
claiming  the  fee.2  And  in  like  manner,  if  any  person  other  than  the 
vendor,  was  in  possession  of  the  land,  the  purchaser  has  constructive 
notice  of  his  rights,  and  takes  it  subject  to  them.3 

The  possession  of  the  vendee's  tenant  is  notice  to  a  subsequent  mortgo- 
gee.4  A  party  dealing  with  real  estate,  of  which  another  is  in  the  actual 
possession,  is  bound  to  make  inquiries  of  the  occupants,  and  to  ascertain 
the  nature  and  extent  of  their  interests.  The  legal  presumption  is  that 
he  will  make  these  inquiries,  and  he  is  estopped  to  deny  that  he  made 
them.  If,  for  instance,  a  tenant  is  occupying  under  a  lease  for  forty-five 
years,  the  purchaser  is  bound  by  the  fact,  that  he  is  entitled  to  that  term, 
if  he  does  not  choose  to  inquire  into  the  nature  of  the  possession,  the 
tenant  being  in  no  fault,  but  enjoying  according  to  his  title.5 

There  is,  however,  a  limitation  to  the  extent  of  the  constructive  notice 
in  cases  of  this  kind,  notwithstanding  it  is  difficult,  and  perhaps  impossible 
to  define  it.  Though  it  is  true,  that  when  a  tenant  is  in  possession  of  the 
premises,  a  purchaser  has  implied  notice  of  the  nature  of  his  title  ;  yet  if  at 
the  time  of  his  purchase,  the  tenant  in  possession  is  not  the  original  lessee, 
but  merely  holds  under  a  derivative  lease,  and  has  no  knowledge  of  the 
covenant  contained  in  the  original  lease,  it  has  never  been  considered  that 
it  was  want  of  due  diligence  in  the  purchaser,  which  is  to  fix  him  with 
implied  notice,  if  he  does  not  pursue  his  inquiries  through  every  deri- 
vative lessee,  until  he  arrives  at  the  person  entitled  to  the  original  lease, 
which  can  alone  convey  to  him  information  of  the  covenant.6 

With  regard  to  what  shall  be  sufficient  to  put  a  party  on  inquiry,  no 
definite  rule  can  be  laid  down.  It  must  be  something  more  than  vague 
rumor.  And  perhaps  each  case  must  depend  upon  its  own  circumstan- 
ces. Every  person  is  presumed  to  be  cognizant  of  what  is  passing  in 
courts  of  justice ;  and  hence  the  established  rule  is  that  a  lis  pendens 
duly  prosecuted  and  not  collusive,  is  notice  to  a  purchaser,  so  as  to  affect 
and  bind  his  interest  by  the  decree.  This  rule  was  stated,  explained  and 
vindicated  by  Chancellor  Kent,  on  several  occasions,  and  it  is  firinl}7  estab- 

1  Gouverneur  v.  Lynch,  2  Paige,  300.        "  The   Bank   of  Orleans  v.  Flagg,   3 
Grimstone  v.   Carter,  3  id.  421.    Ches-    Barb.  Ch.  R.  421. 
terman  v.  Gardner,  5  J.  Ch.  R.  20.  6  Daniels  v.  Davison,  16  Ves.  254.     2 

8  Spofford  v.  Manning,  6  Paige,  383.        Fonb.  Eq.  B.  2,  ch.  6,  §  3. 

'  Brice  v.  Brice,  5  Barb.  533.  '  Hanbury  v.  Litchfield,  2  Myl.  &  K. 

629,  032.  633. 


252  Of  Fraud  tCh.  3 

lished  in  our  jurisprudence.1  That  it  sometimes  operated  with  hardship 
upon  a  purchaser  without  actual  notice,  was  admitted.  And  the  fact  that 
it  did  so  led  to  the  provision  in  the  statute  modifying  the  rule  in  relation 
to  real  estate.  It  was  enacted  in  1823,  and  re-enacted  with  a  slight 
imendment,  in  1830,2  that  to  render  the  filing  a  bill  in  chancery,  con- 
structive notice  to  a  purchaser  of  any  real  estate,  it  shall  be  the  duty  of 
the  complainant  to  file  with  the  clerk  of  the  county  in  which  the  lands  to 
he  affected  by  such  constructive  notice  are  situated,  a  notice  of  the  pen- 
dency of  such  suit  in  chancery,  setting  forth  the  title  of  the  cause  and 
the  general  object  thereof,  together  with  a  description  of  the  land  to  be 
affected  thereby.  Each  county  clerk  is  required  by  the  act,  to  place  in 
an  index  to  be  kept  in  his  office,  such  references  to  the  said  notices  as 
will  enable  all  persons  interested,  to  search  his  office  for  such  notices, 
without  inconvenience.  The  code  of  procedure  requires  this  notice  to  be 
filed  at  the  time  of  filing  the  complaint,  or  at  any  time  afterwards  ;  and 
if  the  object  of  the  action  be  to  foreclose  a  mortgage,  it  requires  i1"  to  be 
filed  twenty  days  before  judgment,  and  in  the  latter  case,  it  must  contain 
the*  date  of  the  mortgage,  the  parties  thereto,  and  the  time  and  place 
tf  recording  the  same.3  In  other  respects  the  doctrine  with  respect  to 
the  effect  of  a  lis  "pendens  remains  as  before.4 

The  revised  statutes  provide  for  the  recording  of  all  conveyances  of 
real  estate,  within  this  state,  in  the  office  of  the  clerk  of  the  county 
where  such  real  estate  is  situated,  and  enact  that  every  conveyance  not 
so  recorded,  shall  be  void  as  against  any  subsequent  purchaser  in  good 
faith  and  for  a  valuable  consideration.,  of  the  same  real  estate,  or  any 
portion  thereof,  whose  conveyance  shall  be  first  duly  recorded.5  This  is 
a  revision  of  the  acts  relative  to  deeds6  and  mortgages,7  of  1813  ami  of 
several  other  acts  on  the  same  subject.8  The  decisions  of  the  courts  un 
der  the  registry  act,  are  applicable  to  similar  questions  arising  under  the 
recording  acts  now  in  being.9  The  effect  of  the  statute  is  to  let  in  tho 
whole  of  the  English  equity  doctrine  of  notice. 

As  one  object  of  the  act  is  to  apprise  purchasers  and  subsequent  mort- 

1  Murray  v.  Ballou,  1  J.  Ch.  R.  576.        b  1  R.  S.  756,  §  1. 
Heatly  v.  Finster,  2  id.  158.     Green  v.        6  1  R.  L.  369. 
Slayter,    4    id.   43.     Prestou  v.  Tubbin,        7  Id.  372. 

1  Vera.  286.  8  Laws   of  1819,   p.  269;  of  1821,   p. 

2  Laws  of  1823,  p.  213,  §  11.     2  R.  S.  127;  of  1822,  p.  261,  284;  of  1823,  p. 
174,  §43.  412. 

3  Code  of  Procedure,  §  132.  9  See  a  review  of  the  several  N.  Y.  re- 

4  See  as  to  lis  pendens,  2  Fonb.  Eq.  cording  acts,  by  Paige,  P.  -T.,  in  Fvrt  v. 
t».  2,  ch.  6,  §  3  and  notes.  Burcli,  6  Barb.  6o  et  seq. 


Ch.  3. J  Notice,  Actual  ok.  Implied.  253 

gagees  of  the  existence  of  the  incumbrance,  if  the  first  mortgage  be  not 
recorded,  and  the  subsequent  mortgagee  or  purchaser  have  notice  thereof 
the  effect  is  the  same  as  to  him,  as  if  the  first  mortgage  were  recorded. 
But  the  notice  which  is  thus  to  supersede  the  necessity  of  a  recording 
of  the  first  mortgage,  must  be  direct  and  positive  or  implied.  A  notice 
which  is  barely  sufficient  to  put  a  party  on  inquiry  is  not  sufficient. 
Nor  is  is  a  suspicion  of  a  notice  sufficient.1  Whatever  would  in  equity 
charge  the  party  with  notice  of  the  equitable  rights  of  a  prior  pur- 
chaser, or  incumbrancer  so  as  to  deprive  him  of  the  privilege  of 
pleading  that  he  is  a  bona  fide  purchaser  without  notice,  must,  in  a 
court  of  law,  be  sufficient  to  protect  the  legal  rights  acquired  under  the 
unrecorded  deed,  against  the  subsequent  recorded  conveyance.2  It  is 
the  settled  doctrine  of  the  courts,  that  when  the  equities  of  the  parties 
are  equal,  and  neither  has  the  legal  title,  the  one  who  has  the  prior  equity 
must  prevail.  Nor  will  a  court  of  equity  permit  the  party  having  the 
subsequent  equity  to  protect  himself,  by  obtaining  a  conveyance  of  the 
legal  title,  after  he  has  either  actual  or  constructive  notice  of  the  prior 
equity.3  To  protect  a  party,  therefore,  and  to  enable  him  to  defend  him- 
self as  a  bona  fide  purchaser,  for  a  valuable  consideration,  he  must  aver 
in  his  plea,  or  state  in  his  answer,  not  only  that  there  was  an  equal  equity 
in  himself,  by  reason  of  his  having  actually  paid  the  purchase  money, 
but  that  he  had  also  clothed  his  equity  with  the  legal  title  before  he  had 
notice  of  the  prior  equity.  And  if  the  person  claiming  the  prior  equity 
is  in  the  actual  possession  of  the  estate,  and  the  purchaser  has  notice  of 
that  fact,  it  is  sufficient  to  put  him  on  inquiry  as  to  the  actual  rights  of 
such  possessor,  and  is  good  constructive  notice  of  such  rights.4 

The  notice  of  the  prior  unregistered  conveyance,  in  order  to  be  available, 
must  be  to  the  party  to  whom  the  second  conveyance  is  executed,  or  to 
his  legal  agent.  Where  land  was  purchased  with  the  property  of  the 
wife,  and  the  conveyance  taken  to  the  husband  and  wife  jointhT,  notice  to 
the  husband  of  the  prior  unrecorded  mortgage  will  not  prejudice  the  wife. 
She.  on  surviving  her  husband,  becomes  seised  of  the  entire  estate,  not 
under  or  through  her  husband,  but  by  the  original  conveyance,  and  is  un- 
affected by  any  notice  given  to  her  husband,  and  not  communicated  to  her.s 

1  Fort  v.  Burch,  6  Barb.  78,  per  Paige,  J.  E.  555.  Jackson  v.  Elston,  12  id.  452. 
E.  J.     Tuttle  v.  Jackson,  6  Wend.  22G,    Jackson  v.  Leek,  19  Wend.  339. 

per  Walworth,  Ch.  3  Touville   v.   Nash,    3    P.  Wins.  307. 

2  2  id.  p.  227.     Jackson  v.  Burgott,  10    Wigge  v.  Wigge,  1  Atk.  384. 

J.  E.  457.     Jackson  v.  Sharp,  9  id.  163.        *  Grimstone  v.  Carter,  3  Paige,  436, 437 
Jackson  v.  Humphrey,  8  id.  137.     Dey        *  Snyder  v.  Sponable,  1  Hill,  567. 
r  Dunham,  2  J.  Ch    R.   1S2.     S.  C.  15 


254  Of  Fraud.  [Ch.  3. 

The  iloctrine  of  constructive  notice  arising  from  the  recording  of  a  con- 
veyance;  is  not  to  be  understood  of  all  deeds  and  conveyances  which  may 
be  de  facto  registered  or  recorded,  but  only  of  such  as  are  authorized  and 
required  by  law  to  be  registered  or  recorded.  Upon  this  principle  it  was 
held,  that  the  recording  of  an  assignment  of  a  mortgage  was  not  notice 
to  a' mortgagor,  so  as  to  render  payments  by  him  to  the  mortgagee,  in  his 
own  wrong;1  and  this  principle  is  now  adopted  and  declared  by  the 
statute.2 

It  is  the  duty  of  the  incumbrancer  to  see  that  his  mortgage  is  correctly 
recorded ;  and  a  subsequent  mortgagee  or  purchaser,  in  good  faith,  is  not 
to  be  charged  with  notice  of  the  contents  of  the  mortgage,  any  further 
than  they  may  be  contained  in  the  mortgage  as  recorded  or  registered. 
AY  here  a  mortgage  for  three  thousand  dollars  was,  by  mistake,  registered 
as  being  only  to  secure  the  payment  of  three  hundred  dollars,  it  was 
held  to  be  notice  to  subsequent  bona  fide  purchasers,  to  the  extent  only 
of  the  latter  sum.3 

As  the  statute  requires  that  deeds  and  mortgages  should  be  recorded 
in  separate  books,  it  follows  that  a  mortgage  recorded  only  in  the  book 
of  deeds  will  not  be  constructive  notice,  because  a  purchaser  or  subsequent 
mortgagee  is  not  bound  to  search  amonj;  deeds  for  mortgages.4  An 
absolute  deed  with  a  subsequent  defeasance  is  a  mortgage,  and  must  be 
recorded  as  such  ;  and  is  not  constructive  notice  of  a  mortgage,  if  recorded 
only  in  the  book  of  deeds.  It  seems  both  the  deed  and  defeasance  should 
be  recorded  in  the  book  of  mortgages,  to  be  available  against  subsequent 
purchasers  or  mortgagees  without  notice.5 

If  the  deed  or  mortgage  be  improperly  recorded,  as  when  the  acknowl- 
edgment or  proof  of  the  execution  of  the  instrument  is  insufficient,  it  is 
not  available  as  notice.6  And  it  is  equally  unavailable  if  there  be  any 
other  material  defect  in  the  record,  having  a  manifest  tendency  to  mislead 
the  inquirer.  In  one  case,  when  the  record  of  a  mortgage  did  not  state 
the  name  of  the  mortgagee,  nor  the  time  when  the  money  was  payable, 
and  the  acknowledgment  did  not  state  that  the  mortgagor  was  known  to 
the  officer  taking  the  acknowledgment,  it  was  held  by  the  supreme  court 
in  the  fourth  district,  not  to  be  constructive  notice  to  subsequent  pur- 
chasers.7    And  although  this  case  was  reversed  on  appeal,  by  the  court 

1  James  v.  Mo  wry,  2  Cowen,  2-46.  6  J.  Ch.  E.  432.     S.  C.  on  appeal,  2  CW- 

-  1  R.  S.  763,  §41.  en,  247.     White  v.  Moore,  1  Paige,  551. 

'  Fn.st  v.  Beekman,  1  J.  Ch.  R.  288.        5  Id. 
S.  C.  18  J.  R.  544.  6  Frost  >   Beekman,  1  J.  Ch.  R.  300. 

4  Dey   v.   Danham,   2  J.  Ch.  R.  182.  Hodgson  v.  Butts,  3  Cranch,  140. 
S   0.  15  J.  R.  555.     James  v.  Johnson,        7  Peck  v.  Mallam.  MS. 


Ch.  3.]  Priority.     Notice.     Tacking.  255 

of  appeals,  it  was  on  a  ground  not  affecting  the  question  as  to  the  euf 
Icicncy  of  the  registry. 

A  mortgage  not  recorded  has  preference  over  a  subsequent  docketed 
judgment.  The  statute  gives  priority  in  case  of  several  mortgages,  to 
the  one  first  recorded,  and  it  provides  that  every  conveyance  of  real  estate 
shall  be  void  as  against  any  subsequent  purchaser,  in  good  faith  and  for  a 
valuable  consideration,  of  the  same  real  estate,  or  any  portion  thereof, 
whose  conveyance  shall  be  first  duly  recorded.1  Were  there  no  statute 
requiring  conveyances  to  be  recorded,  a  mortgage  would  stand  upon  the 
looting  of  any  other  lien  on  real  property.  There  is  nothing  in  the  stat- 
ute which  gives  a  preference  to  a  judgment  docketed  over  an  unregistered 
mortgage.  The  judgment  being  by  act  of  law,  does  not  destroy  the  lien 
acquired  by  an  unregistered  mortgage,  nor  gain  a  preference  over  it 
Should  the  mortgagee  permit  a  sale  to  take  place,  prior  to  the  recording 
of  his  mortgage,  and  the  vendee  of  the  sheriff  have  his  deed  first  recorded, 
he  will  then  gain  a  preference  by  means  of  the  record  over  the  mortgage, 
and  the  latter  will  then  lose  its  priority.2  When  a  mortgage  is  given 
for  the  purchase  money  and  is  executed  at  the  same  time  as  the  deed, 
such  mortgage  is  preferred  to  any  previous  judgment  which  may  have 
been  obtained  against  such  purchaser.3  In  all  other  cases  it  is  believed 
a  judgment  first  docketed,  will  have  priority  over  a  mortgage  subsequently 
made,  whether  recorded  or  not. 

The  effect  of  our  recording  laws  has  been,  among  other  things,  to  abro 
the  English  doctrine  of  tacking  a  junior  to  a  senior  mortgage,  and 
tl  us  squeeze  out  the  intervening  security  of  another  party.4  The  as- 
I  equity  of  the  principle  is,  that  the  last  mortgagee,  when  he  lent 
his  money,  had  no  notice  of  the  second  incumbrance,  ami  the  equities 
between  the  second  and  third  incumbrancers  being  equal,  the  latter,  in 
addition  thereto,  has  the  prior  legal  estate  or  title  and  shall  be  preferred. 
In  the  language  of  the  books,  "  he  hath  both  law  and  equity."  The  legal 
title  and  equal  equity  prevail  over  the  equity.5 

The  rule  with  respect  to  the  effect  of  notice,  resulting  from  the  regis- 
try of  an  incumbrance,  is  different  in  England  from  that  which  prevails 
with  us.  In  both  countries,  the  registry  operates  as  constructive  notice 
to  subsequent  mortgagees.     But  in  England  it  is  not  deemed  equivalent 


1 1  R.  S.  756,  §  1.  in  error,   112.    P&rkist  v.  Alexander,  1 

1  Jackson  v.  Dubois,  4  J.  R.  221,  222.  <L  Ch.  R.  399. 

Schmidt  v.  Iloyt,  1  Edw.  V.  Ch.  R.  G52.  6  Brace  v.  Duchest  of  Marlborough,  2 

3  1  R.  8.  749,  §  5.  P.  Wins.  491. 
'  Grant  v.  Bank  of  U.  S.  1  Caines'  Cas. 


•256  Op  Fraud.  [Ch.  8. 

to  actual  notice  for  any  other  purpose.  And  hence  in  that  country,  the 
registry  of  incumbrances  does  not  interfere  with  the  doctrine  of  tacking, 
or  affect  subsequent  purchasers.1  Nor  with  us  is  the  record  or  registry 
notice  to  subsequent  incumbrancers  or  purchasers,  unless  the  instrument 
be  legally  registered  or  recorded  ;  nor  then  is  it  notice  of  collateral  mat- 
ters ;  or  of  any  thing,  if  it  be  a  mortgage,  except  the  fact  that  it  is  a 
mortgage,  the  names  of  the  parties,  the  amount  specified  in  the  record, 
and  the  time  when  payable  ;  and  in  case  it  be  a  deed,  of  the  fact  that  such 
deed  has  been  executed  by  the  parties  thereto  of  the  premises  therein 
described.'2 

To  constitute  a  bona  fide  purchase  for  a  valuable  consideration,  such 
purchase,  says  Chancellor  Kent,  must  be  without  notice  and  with  the 
money  actually  paid,  or  else,  according  to  Lord  Hardwicke,  you  are  not 
hurt.  The  averment  must  be,  not  only  that  the  purchaser  had  not  notice 
at  or  before  the  time  of  the  execution  of  the  deed,  but  that  the  purchase 
money  was  paid  before  notice.  There  must  not  only  be  a  denial  of  no- 
tice before  the  purchase,  but  a  denial  of  notice  before  payment  of  the 
money.3  Even  if  the  purchase  money  be  secured  to  be  paid,  yet  if  it  be 
not  in  fact  paid,  before  notice,  the  plea  of  a  purchase  for  a  valuable  con- 
sideration will  be  overruled.4  As  a  general  rule,  says  Chancellor  Wal- 
worth, a  purchaser  of  the  legal  title,  who  receives  his  conveyance  merely 
in  consideration  of  a  prior  indebtedness,  is  not  entitled  to  protection  ;  lie- 
cause  he  has  lost  nothing  by  the  purchase.  But  the  relinquishment  of 
a  valid  security,  which  he  before  held  for  his  debt,  and  which  cannot  bo 
revived  so  as  to  place  him  in  the  same  situation,  substantially,  as  to  secu 
rity,  as  he  was  in,  prior  to  his  purchase,  may  of  itself  be  sufficient  to 
entitle  him  to  protection  as  a  bona  fide  purchaser.3 

The  rule  seems  to  be  the  same  in  this  state,  with  respect  to  the  indoi 
see  of  negotiable  commercial  paper.  It  is  not  enough  to  shut  out  the 
equities  of  the  prior  parties  to  the  note,  that  the  holder  received  it  in 
good  faith,  and  before  maturity,  unless  he  paid  value,  or  parted  with  a 
consideration  upon  the  faith  of  the  paper.  If  he  merely  received  it  on 
account  of  a  previous  indebtedness,  although  upon  a  valid  consideration 
between  the  parties,  he  is  in  no  worse  condition  with  respect  to  such  in- 
debtedness, than  he  was  before,  if  he  fails  to  recover  the  note.  His 
equity  is  not  superior  to  that  of  the  prior  owner  of  the  note,  if  it  was 


1  Latouch  v.  Dcnsany,  1   Sch.  &  Lefr  Harrison  v.  Southcote,  1  Atk.  588.  ►Mory 
157.     Ex  parte  Knott,  11  Ves.  619.  v.  Lord  Windsor,  2  Atk.  630. 

2  Dey  v.  Dunham,  2  J.  Ch.  R.  190,  191.  4  Id.  Hardingham  v.  Nichols,  3  Atk. 80-1. 

3  Jewett  v.  Palmer.   7  J.  Ch.  R.   68.  *  Padgett  v.  Lawrence,  10  Paigo,  180 


Oli.  3.J  Collusive  Subscriptions.  257 

fraudulently  put  in  circulation.  The  principle  in  this  class  of  cases 
is,  that  the  person  passing  the  note,  from  the  fact  of  having  possession, 
is  the  ostensible  owner  of  it,  and  the  holder  having,  in  the  usual  course 
of  business,  given  eredit  to  these  appearances,  which  he  was  justified  in 
doing,  has  been  induced  to  part  with  his  money  or  property,  bona  fide  ; 
and  that,  as  between  him  and  the  real  owner,  there  must  be  a  loss  on  one 
side  or  the  other,  the  law  will  not  divest  the  holder  of  fruits  he  has  hon- 
estly acquired,  without  the  possibility  of  remuneration.  In  other  words, 
the  equities  of  the  parties  being  equal,  the  law  leaves  him  in  possession 
who  already  has  it.  But  if  the  holder,  at  the  time  he  received  the  paper, 
parts  with  no  new  consideration  on  the  faith  of  the  same,  he  may  be  a 
gainer  if  the  note  prove  available  ;  and  if  not,  he  remains  as  he  was  be- 
fore. He  stands  in  a  different  condition  from  one  who  makes  advances 
on  the  credit  of  the  paper ;  for  if  that  fails,  his  loss  is  certain.  This  is 
the  doctrine  of  the  cases  in  New- York,  and  has  been  upheld  by  the  courts 
for  more  than  half  a  century.1  This  doctrine,  as  explained  in  Codding- 
ton  v.  Bay,  was  disapproved  by  the  supreme  court  of  the  United  States, 
in  Swift  v.  Tyson,2  but  it  was  ably  vindicated  by  the  chancellor  subse- 
quently, in  Stalker  v.  M;Donald,3  and  received  the  unanimous  concur- 
rence of  the  court  of  errors.  It  is  still  followed  by  the  courts  of  this 
slate. 

Another  class  of  constructive  fraud  may  be  seen  where  one  or  more 
subscribers  to  a  common  fund,  for  a  charitable  object,  becomes  a  party  to 
the  subscription  paper,  under  a  secret  agreement  to  be  released  or  reim 
biirsed  his  subscription  by  the  party  for  whose  benefit  the  fund  is  raised. 
The  essense  of  every  agreement  of  this  kind  is,  that  there  should  be  a  per- 
fect equality  among  the  subscribers  as  to  the  nature  and  extent  of  their 
respective  liabilities  for  the  several  sums  subscribed  by  them  respectively 
Any  understanding  or  agreement,  therefore,  which  gives  to  one  subscri 
ber  an  advantage  over  his  associates,  not  known  to  or  approved  by  them, 

•  Rosa  v.  Brotherson,  10  "Wend.  86,  as  Stalker  v.  M'Donald,  6  id.  93.     Furniss 

explained   in  Smith   v.   Van   Loan,   10  v.   Gilchrist,   1   Sandf.  53.     Ward  ell   v. 

id.  G59.    Jones  v.  Swan,  G  id.  589.     Hart  IIo well,  9  Wend.  170.     Stewart  v.  Small, 

v.  Palmer,  12  id    523.     Ontario  Bank  v.  2  Barb.  S.  0.  E.  559.     Spear  v.  Myers, 

Worthington,  12  id.  593.    Payne  v.  Cut-  6  id.  445.     Fraricia  v.  Joseph,  3  Ed.  V. 

ler,  13  id.  605.    Bank  of  St.  Albans  v.  Ch.  R.  182.     Bank  of  Salina  v.  Babcock, 

Gilliland,  23  id.  811.     Small  v.  Smith,  21    Wend.   499.     Bank   of  Sandusky  v. 

1  Denio,  583.     Coddington  v.  Bay,  20  J.  Scoville.  24  id  115. 

R.  637  affirming  S.  C.  5  J.   Ch.  R.  54.  2  Swift  v.  Tyson,  16  Peters,  1. 

Manhattan  Co.  v.   Reynold*.  2  Hill,  140.  3  6  Hill,  93.     2  Kent's  Com.  81  to  83 

Ey.  JtJR.  iJ3 


258  Of  Fraud.  Ch.  3. 

is  a  fraud  upon  their  rights.     Thus,  where  a  subscription  was  set  on  foot 
to  raise  a  fund  of  fifty  thousand  dollars  for  the  trustees  of  Hamilton 
College,  and  the  subscription  paper  contained  a  clause,  stating  that  the 
subscribers  should  not  be  holden  to  pay  the   sums  subscribed  by  them, 
unless  the  aggregate  of  all  the  subscriptions  should,  by  a  certain  day, 
amount  to  the  sum  of  fifty  thousand  dollars,  it  was  held  that  an  agree- 
ment by  certain  individuals  of  undoubted  responsibility  to  pay  the  trus- 
tees the  amount  of  the  deficiency  in  the  subscription  which  should  exist 
en  that  day,  the  trustees  by  a  resolution  pledging  themselves  to  continue 
to  raise  funds  beyond  the  day  mentioned  to  make  good  said  deficiency,  was 
not  a  compliance  with  the  terms  of  the  subscription.     Such  agreement 
was  a  fraud  upon  the  prior  subscribers.     The  subscribers  who  became 
such,  under  a  contract  to  be  reimbursed,  did  not  stand  on  terms  of  equal- 
ity and  mutuality  with  the  other  subscribers.     To  make  the  general 
subscription  valid,  so  as  to  fill  up  the  whole  sum  of  fifty  thousand  dollars, 
within  the  terms  of  the  agreement,  it  should  have  been  an  absolute  da- 
nation  of  the  amount  of  the  deficiency,  to  be  paid  at  the  same  time  as 
the  other  subscriptions,  and  no  part  of  it  to  be  restored  or  refunded  to 
them  upon  any  contingency  or  in  any  event,  other  than  such  as  was  com- 
mon to  the  subscriptions  of  all  the  other  subscribers.     The  chancellor 
likened  it  to  an  ordinary  composition  deed,  where  there  is  an  express 
agreement  between  the  creditors  themselves  to  discharge  the  debtor,  upon 
receiving  a  ratable  proportion  of  their  respective  debts,  in  which  case  it 
is  settled,  that  any  private  agreement  or  understanding  between  tho 
debtor  and  any  particular  creditor  that  the  latter  shall,  at  any  time,  or  in 
any  contingency,  receive  a  greater  sum  than  the  amount  of  his  debt,  as 
specified  in  the  composition  deed,  is  held  void,  as  a  fraud  upon  the  other 
creditors.1 

On  the  same  principle,  it  is  obvious,  that  all  the  subscriptions  which 
are  taken  into  the  estimate  to  make  up  the  sum  to  be  raised,  must  be 
binding  and  operative  subscriptions,  and  such  as  could  be  enforced  in  a 
court  of  justice.  Hence  a  subscription  by  a  minor,  or  other  person,  not 
competent  to  contract,  should  be  laid  out  of  the  estimate,  unless  the  same 
were  paid  in  cash.2  It  is  a  fraud  upon  the  other  subscribers  to  take  a 
subscription,  with  a  view  to  make  up  the  requisite  amount,  which  is  not 
binding  on  the  party  by  whom  it  was  made. 

Similar  questions  have  sometimes  arisen  under  acts  of  incorporation 
granted  to  railroad  companies,  turnpike  compan'es,  and  the  like.     Thus, 

1  Stewart  v.  The  Trustees  of  Hamilton        '  Id. 
College,  2  Penio,  418,  419. 


Ch.  3.J  Collusive  Subscriptions.  259 

■when  a  charter  has  been  obtained  by  means  of  fictitious  subscriptions  for 
part  of  the  stock,  and  a  fraud  has  been  committed  on  a  real  subscriber, 
by  -which  he  has  sustained,  or  by  which  he  might  sustain  injury,  no  action 
can  be  maintained  against  him  by  the  corporation,  for  the  amount  of  hia 
subscription  ;  but  when  such  subscriber  has  accepted  the  charter,  and  by 
his  own  acts  put  it  in  operation,  he  cannot  avail  himself,  as  a  defense  of 
the  fact,  that  part  of  this  stock  was  fictitious.1 

1  0.  &  K.  Turnpike  Co.  v.  McConably,  16  8.  &  E.  142.    Angel  &  Ames  on  Cor 
porations,  481. 


CHAPTER  IV. 

fP    SPECIFIC    PERFORMANCE,   CORRECTION,    RE-EXECUTION  OF  A  3REE- 
MENTS,  AND  COMPENSATION. 

HAVING  treated  the  general  subject  of  fraud  in  various  aspects,  we 
propose,  in  this  and  the  two  succeeding  chapters,  to  treat  briefly 
of  some  of  the  modes  by  which  fraud  is  anticipated  and  prevented.  Some 
of  these  remedies  point  to  some  active  duty  to  be  performed  by  the  de- 
fendant, and  others,  to  his  desisting  from  doing  what  is  contrary  to  equity 
and  good  conscience  ;  or  they  require  third  persons  to  adjust,  between  them- 
selves, controversies  with  which  the  plaintiff  has  no  interest,  but  in  which 
he  is  in  danger  of  being  involved.  We  shall  treat,  in  this  chapter,  of  some 
of  the  cases  in  which  some  active  duty  is  required  of  the  defendant. 

Every  agreement  made  between  parties  capable  of  contracting,  upon  a 
lawful  subject  matter,  and  upon  an  adequate  consideration,  and  which  is 
not  contrary  to  public  policy,  or  against  any  positive  statute,  should,  if 
practicable,  be  performed.  This  is  required  no  less  by  sound  morals  than 
by  law.  Every  well  ordered  society  must  provide  some  remedy  for  the 
violation  of  agreements.  The  common  law,  which  left  no  wrong  without 
some  mode  of  redress,  was  defective  in  relation  to  the  violation  of  con 
tracts,  and,  in  general,  afforded  no  remedy  to  the  injured  party  but  a  com- 
pensation in  damages. 

It  was  felt,  at  an  early  day,  that  this  remedy,  in  numerous  cases,  was 
wholly  inadequate,  and  we  accordingly  find,  as  early  as  the  reign  of  Ed- 
ward the  4th,  that  courts  of  equity  exercised  a  jurisdiction  in  decreeing 
the  specific  performance  of  agreements.1  It  is  now  well  established,  by 
a  scries  of  decisions,  that  this  relief  will,  in  general,  be  granted,  where- 
ever  a  court  of  law  wTould  give  damages  for  the  non-performance  of  the 
agreement,  and  such  damages  would  not  be  an  adequate  compensation  for 
the  non-performance,  unless,  indeed,  circumstances  shall  have  put  it  out 


1  1  Madd.  Ch.  Pr.  287.   1  Fonb.  Eq.  B.  1,  ch.  1,  §  5,  and  notes. 

261 


262  Specific  Performance.  [Ch.  4. 

of  the  power  of  the  party  to  perform,  or  the  agreement  shall  be  jhown  to 
be  unfair  or  unreasonable. 

There  are  some  cases  where  an  action  at  law  enables  the  plaintiff  tc 
recover  the  specific  thing  in  dispute.  This  is  so  in  the  action  to  recover 
land,  corresponding  with  the  action  of  ejectment  and  the  old  real  actions,1 
and  in  the  claim  and  delivery  of  personal  property,  which  takes  the 
place  of  the  old  actions  of  replevin  and  detinue.2  But  these  legislative 
provisions  afford  a  remedy  for  only  a  small  portion  of  the  cases,  where  a 
recovery  in  specie  is  desirable. 

The  consideration  of  the  doctrine  of  specific  performance  presupposes 
that  the  original  transaction  is  unimpeached  and  valid,  and  that  nothing 
remains  but  to  enforce  the  equity  resulting  from  the  non-performance  of 
the  agreement.  But  if  the  contract  sought  to  be  enforced,  be  lost  or  de- 
stroyed— if  through  accident  or  mistake  it  has  been  incorrectly  framed, 
or  if  the  transaction  be  vitiated  by  fraud — a  new  equity  arises  to  have  the 
instrument  re-executed,  the  error  corrected,  or  the  fraudulent  contract  re- 
scinded or  cancelled.  A  court  of  law  is,  in  general,  incapable  of  afford- 
ing full  and  perfect  relief  in  these  cases,  and  hence  the  remedial  power  of 
equity  must  be  invoked. 

We  shall  ..treat  of  the  equities  arising  in  all  these  cases,  in  the  present 
chapter. 


SECTION  I. 


OF    SPECIFIC    PERFORMANCE. 


Before  treating  of  the  different  kinds  of  agreements,  of  which  equity 
will  decree  performance,  it  may  be  well  to  consider  some  of  the  cir- 
cumstances, which  are  common  to  all,  with  respect  to  this  head  of  equitar 
ble  relief.  It  has  been  remarked  by  a  learned  and  enlightened  English 
equity  judge,  that  if  the  contract  be  entered  into  by  a  competent  party,  and 
be  in  the  nature  and  circumstances  of  it  unobjectionable,  it  is  as  much 
of  course  for  a  court  of  equity  to  decree  a  specific  performance,  as  it  is  to 
give  damages  at  law.3  This  doctrine  is  also  well  established  in  this  state.4 
The  question  then  recurs,  what  are  the  nature  and  circumstances  of  the 
contract  which  may  render  the  execution  of  it,  in  specie,  objectionable. 

1  2  R.  S.  303.  4  Per  Savage,  Ch.  J.  in  Seymour  v.  De- 

a  Code  of  Procedure,  §  206  et  seq.  lancy,  3  Cowen,  505. 

3  Sir  "Wm.  Grant,  in  Hall  v.  Warren,  9 
Yes.  608. 


Ch.  4.]  Consideration-.  263 

The  question  supposes  that  the  right  to  a  specific  performance  of  an  agree- 
ment is  not  coextensive  with  a  right  to  recover  at  law.  The  giving  spe~ 
cific  performance  is,  as  was  said  by  Lord  Eldon,  and  has  often  been  repeat- 
ed by  others,  a  matter  of  discretion  ;  not  an  arbitrary,  capricious  discre- 
tion ;  but  regulated  upon  grounds  that  will  make  it  judicial.1  And  it  has 
been  said  by  eminent  judges,  that  a  court  of  equity  will  often  refuse  to 
enforce  a  contract,  which  it  would  also  refuse  to  annul.2 

The  equity  to  a  specific  performance  does  not  arise  upon  a  merely 
gratuitous  promise.  Chancery  will  never  decree,  specifically,  a  mere 
voluntary  agreement.3  To  entitle  the  party  to  the  aid  of  the  court,  the 
contract  must  be  supported  by  a  valuable  consideration,  or.  at  least,  by 
what  a  court  of  equity  considers  a  meritorious  consideration,  as  payment 
of  debts,  or  making  provision  for  a  wife  or  child.4 

The  question  whether  inadequacy  of  consideration  alone  is  sufficient  to 
induce  the  court  to  withhold  its  aid,  when  called  upon  to  enforce  a  spe- 
cific execution  of  the  agreement,  has  led  to  much  discussion  and  to  some 
conflict  of  judicial  opinion.  It  has  been  shown,  in  a  previous  chapter, 
that  inadequacy  of  consideration  is  not  alone  a  sufficient  ground,  in  ordi- 
nal v  cases,  to  set  aside  a  conveyance  of  property.5  It  was  said  that 
inadequacy  of  price  might  be  so  great  as  to  afford  evidence  of  fraud ;  and 
that  even  a  less  degree  of  inadequacy  might,  in  connection  with  imbe- 
cility of  mind,  oppression,  undue  advantage,  surprise,  or  the  like,  justify 
the  interposition  of  the  court.  But  in  all  such  cases  it  is  the  fraud,  rather 
than  the  inadequacy  of  price,  which  affords  the  ground  of  relief.6 

But  there  is,  according  to  some  of  the  cases,  a  great  distinction,  in  this 
respect,  between  ordering  a  contract  to  be  rescinded,  and  decreeing  it  to 
racd.  Though  inadequacy  of  price  is  not  a  ground  for  decreeing 
an  agreement  to  be  delivered  up,  or  a  sale  rescinded,  (unless  its  gross- 
ness  amounts  to  fraud,)  yet  it  may  be  sufficient  to  induce  the  cou::i  to 
refuse  to  decree  performance.  It  is  not  an  uncommon  thing,  says  Chan- 
cellor Kent,  for  the  court  to  refuse  to  enforce,  for  inadequacy,  and,  at  the 
same  time,  refuse  to  rescind.7    And,  in  a  subsequent  case,  the  same  learned 

1  "White  v.  Damon,  7  Yes.  35.  Soy-  3  Barker  v.  May,  3  Marsh.  4S6.  Acker 
uiour  v.  Delancy,  3  Cowen,  445.  S.  0.  v.  Phoenix,  4  Paige,  305.  Minturn  v. 
6  J.  Ch.  R.  222.     St.  John  v.  Benedict,    Seymour,  4  J.  Ch.  R.  497. 

6  id.  111.     Goring  v.  Naish,  3  Atk.  187.  "Id.    Thompson  v.  Attfield,  1  Yern. 

Bennett  v.  Smith,  10  Law  and  Eq.   272.  40.     Longdale  v.  Longdale,  1  id.  450. 

16  Jur.  421.   Rogers  v.  Saunders,  4  Maine  6  Ante,  Chap.  III. 

02.  Frisby  v.  Ballan,  4  Scam.  287.    Math-  6  Osgood  v.  Franklin,  2  J.  Ch.  C.  24. 

cws  v.  Terwilleger,  3  Barb.  S.  O.  R.  50.  7  Osgood  v.  Franklin,   2  J.  Ch.  R.  1 

2  Jackson  v.  Asliton,  11  Peters.  229.  S.  C.  affirmed  in  error,  14  J.  R.  527, 


264  Specific  Performance.  [Ch.  4 

chancellor  said,  that  inadequacy  of  price  may,  of  itself,  and  without  fraud 
or  other  ingredient,  be  sufficient  to  stay  the  application  of  the  power  of 
the  court  to  enforce  a  specific  performance  of  a  private  contract  to  sell 
land,  though  it  may  be  true  that  mere  inadequacy  of  price,  independent 
of  other  circumstances,  is  not  sufficient  to  set  aside  the  transaction.1  And 
he  dismissed  a  bill  filed  for  the  specific  performance  of  an  agreement  for 
the  exchange  of  certain  lots  for  two  farms,  the  inadequacy  of  price  being 
so  great,  in  his  judgment,  (being  half  the  value,)  as  to  give  to  the  contract 
the  character  of  unreasonableness,  inequality  and  hardship. 

The  decree  of  the  chancellor  was  reversed  on  appeal  by  the  court  of 
errors  ;  but  as  the  senator,  who  gave  the  prevailing  opinion,  differed  from 
the  chancellor  on  the  matter  of  fact,  as  to  the  degree  of  inadequacy,  it  is 
impossible  to  know  how  far  the  doctrine  of  Chancellor  Kent,  as  above 
stated,  is  modified  by  the  reversal.  It  becomes  necessary  to  compare 
the  opinion  of  the  chief  justice  who  was  for  affirming  the  decree,  with 
that  of  the  learned  senator  who  went  for  reversing  it,  and  decreeing  a 
specific  execution  of  the  agreement.  The  chief  justice,  after  an  elaborate 
review  of  the  English  and  American  cases,  came  to  the  conclusion,  on  this 
branch  of  the  case  ;  that  if  there  are  circumstances  of  unfairness,  though 
not  amounting  to  fraud  or  oppression,  or,  if  the  inadequacy  of  consider- 
ation be  so  great  as  to  render  the  bargain  hard  and  unconscionable,  the 
court  may  refuse  its  aid  to  enforce  the  contract,  and  leave  the  parties  to 
contest  their  rights  in  a  court  of  law.2 

The  learned  senator,  who  delivered  the  prevailing  opinion,  admitted  that 
the  exercise  of  the  power,  in  a  court  of  chancery,  to  enforce  the  specific 
performance  of  contracts  for  the  sale  or  exchange  of  land,  rests  in  the 
sound  discretion  of  the  court ;  that  this  is  a  sound  legal  discretion ;  and 
not  the  exercise  of  an  arbitrary  power,  interfering  with  the  contracts  of 
individuals,  and  sporting  with  their  vested  rights.  He  admitted,  that  the 
party  claiming  the  specific  performance  must  present  a  case,  fair,  just 
and  reasonable  ;  that  the  contract  must  be  founded  on  adequate  consid- 
eration ;  and  that  it  must  be  free  from  fraud,  misrepresentation,  deceit 
or  surprise.  He  admitted,  further,  that  when  the  inadequacy  of  price  in 
a  contract  is  so  flagrant  and  palpable  as  to  convince  a  man,  at  the  first 
blush,  that  one  of  the  contracting  parties  had  been  imposed  on  by  some 
false  pretense,  such  a  contract  ought  not  to  be  enforced  by  a  court  of 
equity.  It  is  not  to  be  denied,  he  observed,  that  it  is  the  settled  doe- 
trine  of  the  court  of  chancery,  that  it  will  not  carry  into  effect,  specifi- 
cally, a  contract  when  the  inadequacy  of  price  amounts  to  conclusive 

1  Seymour  v.  Delancy,  6  J.  Ch.  R.  222.        2  Seymour  v.  Delancy,  3  Cowen,  531. 


Oli.  4.j  Consideration-.  £0£ 

evidence  of  fraud.  But  he  could  not  assent  to  the  doctrine,  that  made 
quacy  of  price,  of  itself,  and  without  fraud  or  other  ingredient,  was  suf 
ficient  to  stay  the  application  of  the  power  of  a  court  of  equity,  to  enforce 
&  specific  performance  of  a  private  contract  to  sell  land.  And  in  the 
case  then  under  consideration,  he  thought  the  difference  between  the 
price  agreed  on,  and  the  actual  valuation,  taking  the  average  of  the  sev- 
eral witnesses,  was  but  about  one-sixth  of  the  contract  price,  and  too 
small  a  difference  to  amount  to  evidence  of  fraud. 

If  the  majority  of  the  court  agreed  with  him  in  the  last  position,  which 
is  one  of  fact,  there  was  no  occasion  for  their  dissenting  from  the  doctrine 
of  the  chancellor  and  chief  justice  on  the  important  question  of  law. 
whether  inadequacy  alone  was  sufficient  to  withhold  a  decree  for  a  spe- 
cific performance. 

The  English  cases  which  have  gone  the  farthest  in  holding  that  inad- 
equacy alone  is  not  an  answer  to  a  bill  for  a  specific  performance,  are  ca- 
ses where  the  sale  was  at  pitblic  auction.  This  was  the  case  of  White 
v.  Damon,1  in  which  Lord  Roslyn  dismissed  the  bill,  on  the  ground  of  in- 
adequacy, and  Lord  Eldon,  upon  a  rehearing,  remarked  that  the  plaintiff 
was  not  affected  by  any  thing  beyond  suspicion  ;  that  the  sale  taking  place 
at  an  auction,  without  any  fraud,  surprise  or  mistake — the  estate  being 
offered  upon  any  price  the  party  would  bid — and,  without  more,  the  de- 
fendant became  the  purchaser.  Such  a  sale,  his  lordship  said,  where  there 
is  no  fraud,  or  surprise,  cannot  be  set  aside  for  mere  inadequacy  of  price. 
It  will  be  very  difficult  to  sustain  sales  by  auction,  if  a  court  of  equity 
will  not  specifically  perform  the  agreement.  In  a  later  case,  Lord  Eldon 
said,  unless  the  inadequacy  of  price  is  such  as  shocks  the  conscience,  and 
amounts  to  conclusive  and  decisive  evidence  of  fraud  in  the  transaction, 
it  is  not  itself  a  sufficient  ground  for  refusing  a  specific  performance.2 
That,  too,  was  the  case  of  an  auction  sale,  in  which  there  was  in  truth  no 
foundation  for  the  charge  of  inadequacy  of  consideration.  The  recent 
case  of  Borell  v.  Dann,3  was  also  a  case  of  sale  by  auction.  The  vice 
chancellor  said :  Fraud  in  the  purchaser  is  of  the  essence  of  the  objec- 
tion to  the  contract,  on  the  ground  of  inadequacy.  The  only  exception  to 
the  rule  for  decreeing  the  specific  performance  of  an  unexecuted  contract, 
or  the  ground  of  inadequacy  of  consideration,  is,  that  it  is  sn  ,^ross  that, 
of  itself,  it  proves  fraud  or  imposition  on  the  part  of  the  purchaser.  The 
case  must,  however,  be  strong  indeed,  in  which  a  court  of  justice  shall 
say  that  a  purchaser  at  a  public  auction,  between  whom  and  the  vendors 
there  has  been  no  previous  communication,  affecting  the  fairness  of  the 

1  7  Yes.  30.  2  Coles  v.  Trccothiek,  0  Vc-s.  240.  3  2  lla:e,  451 

Eo.  Jub.  ?.2 


266  Specific  Performance,  [Ch.  4. 

sale,  is  chargeable  with  fraud  or  imposition,  only  because  his  bidding  did 
not  greatly  exceed  the  amount  of  the  vendor's  reserved  bidding. 

The  early  English  cases,  in  the  time  of  Lord  Hardwicke,  in  transac- 
tions between  party  and  party,  and  where  the  sale  was  not  at  auction, 
hold  a  different  language.  Thus,  in  1740,  Lord  Hardwicke  said  in  the 
case  of  a  hard  bargain,  when  it  is  not  absolutely  executed,  but  executory 
only,  the  constant  rule  of  the  court  is,  not  to  carry  it  into  e  xecution.' 
And  in  another  case,  he  observed  that  nothing  is  more  established  in  the 
court  of  equity,  than  that  every  agreement  sought  to  be  specifically  en- 
forced ought  to  be  certain,  fair  and  just  in  all  its  parts }  and  if  any  of 
those  ingredients  are  wanting  in  the  case,  the  court,  will  not  decree  a  spe- 
cific performance.2  In  another  case  Lord  Hardwicke  refused  to  decree 
specific  performance,  on  the  ground  that  the  court  was  not  obliged  to  do 
so,  when  it  would  be  attended  with  great  loss  and  hardship  to  one  of  the 
parties,  and  compensation  in  damages  could  be  made.3  Lord  Eldon  ob- 
served in  one  case,  that  there  are  many  cases  in  which  the  court  will  not 
disturb  an  agreement  that  has  been  executed  ;  though  it  would  have  re- 
fused  to  carry  that  agreement  into  execution ;  and  where,  refusing  to 
execute  the  agreement,  it  will  leave  the  party  to  make  the  most  of  it  at 
law.4  It  is  true  his  lordship  was  not  then  considering  the  question  of 
inadequacy.  But  if  the  court  may  refuse  to  carry  into  effect  a  hard  bar- 
gain, it  may  certainly  refuse  relief  when  the  consideration  is  so  far  inad 
equate  as  to  constitute  a  hard  bargain. 

The  recent  English  cases  incline  to  hold  inadequacy  alone  as  an  insuffi- 
cient ground  to  prevent  a  decree  for  a  specific  performance,  thus  placing 
cases  under  this  head  of  equity  upon  the  same  footing  with  bills  to  rescind 
agreements  for  inadequacy  of  consideration,  though  the  cases  on  the  sub- 
ject are  not  entirely  consistent.5 

In  this  country  the  weight  of  authority  is,  that  though  equity  will  not 
set  aside  an  executed  agreement  for  inadequacy  of  consideration,  not 
amounting  to  evidence  of  fraud,  yet  it  will,  in  private  sales,  refuse  its  aid 
to  carry  it  into  execution,  though  the  inadequacy  be  not  sufficient  to  set  it 
aside.6     A  bill  in  equity  for  the  specific  performance  of  a  contract  is  *in 

'  Barnardiston  v.  Lingood,  2  Atk.  134.  Pr.  336,  contra;  and  Vigers  v.  Pike  8 

'  Buxton  v.  Lister,  3  id.  385.  Clarke  &  Fin.  5C2,  645. 

3  City  of  London  v.  Nask,  3  id.  515.  6  Clitkerell  v.  Ogilvie,  1   Dessus.   2r>0. 

*  Willan  v.  Willan,  16  Ves.  83.  O.-^good  v.  Franklin,  2  J.  Ck.  R.  23.    S  C. 

6  Western  v.  Russell,  3  Ves.  &  Beame,  on  appeal,  14  J.  R.  527.     Seymour  v. 

193.     Griffitk  v.  Spratley,  2  Br.  Ch.  Cas.  Delancy,  6  J.  Ck.  R.  223.     S.   C.  on  ap- 

179.     Adams  v.  Weare,  1  id.  567.     Mor-  peal,  3  Cowen,  445.   St.  Jokn  v.  Benedict, 

timer  v.  Capper,  id.   156.     Adams'  Eq.  6  J.    Ck.    P.    111.     Gasrpae  v.  Small,  2 

79.  Phil.  ed.  208.     But   see  1  Mad.  Ch.  Strobh.  Eq.  72. 


Ch.  4.]  Mutuality,  267 

application  to  the  sound  discretion  of  the  court,  which  withholds  or  grants 
relief,  according  to  the  circumstances  of  each  particular  case ;  and,  in  the 
exercise  of  its  extraordinary  jurisdiction  in  such  cases,  the  court,  though 
not  exempt  from  the  general  rules  and  principles  of  equity,  acts  with 
more  freedom  than  when  exercising  its  ordinary  powers.  The  contract 
must  be  fair  and  just  and  certain,  and  founded  on  an  adequate  considera- 
tion ;  and  if  deficient  in  either  of  these  requisites,  its  performance  will 
not  be  decreed:  hence,  the  plaintiff  who  seeks  the  enforcement  must  make 
out  a  stronger  case  than  he  who  resists  the  decree.1  Greater  latitude 
will  be  allowed  to  the  defendant  in  resisting,  than  will  be  allowed  to  the 
plaintiff  in  making  out  his  case,2 

The  agreement  to  be  enforced  must  be  mutual  in  its  character  and  cer- 
tain  in  its  terms.3  If  the  party  seeking  to  enforce  the  agreement  was  not 
himself  liable,  and  the  same  could  not  be  enforced  against  him,  there  is 
no  reciprocity  in  allowing  him  to  enforce  it  against  the  other  party.  This 
was  one  of  the  grounds  on  which  Chancellor  Kent  denied  relief  in  Bene- 
dict v.  Lynch,  though  there  were  other  objections  to  the  plaintiff's 
recovery.4  The  same  doctrine  is  explicitly  recognized  by  Chancellor 
Walworth  ;5  and  by  Edmonds,  J.6  Mutuality  and  certainty  are,  in  general, 
indispensable  requisites  to  the  granting  of  relief.7 

The  only  exception  to  the  rule,  with  respect  to  mutuality,  is,  when  an 
agreement,  under  the  statute  of  frauds,  has  only  been  executed  by  the 
party  sought  to  be  charged.  In  this  class  of  cases,  although  the  plaintiff 
h  is  not  signed  the  agreement  and  it  cannot  be  enforced  against  him,  yet 
ho  can  enforce  it  against  the  other  party,  by  whom  it  has  been  executed. 
This  seems  to  be  well  settled  by  the  English  and  xlmerican  cases.*  It 
was  at  one  time  questioned  by  Lord  Iledesdale,9  who  thought  that  the 
contract  ought  to  be  mutual  to  be  binding,  and  that  if  one  party  could 
not  enforce  it  the  other  ought  not.     Chancellor  Kent  in  Clason  v.  Bailey 

'  Tyson  v.  Watts,  1  Maryl.  Cli.  Decis.  Bronson  v.  Cahill,  4  McLean.  19.  Tyson 
13.  v.  Watts,  1  Maryl  Ch.  Decis.  13.     Beard 

2  Casey  v.  ELolmes  et  al.,  10  Alabama,     v.  Linthicum,  id.  345. 

770.      Story's  Eq.  §  7G9.     Cathcart   v.  s  Seton  v.  Slade,  7  Ves.  275.     Fowle 

Bobinson,  5  Peters,  264,  270.  v.  Freeman,  9  id.  351.     Clason  v.  Bailey, 

3  Bromley  v.  Jeffers,  2  Vera.  415,  14  J.  B.  484,  per  Kent.  McCrea  v.  Pur- 
*  1  J.  Ch.  B.  307.  mort,  16  Wend.  406,  affirming  Att'y 
5  German  v.  Macliin,  6  Paige,  288.  m  Gen.  v.  Purraort,  5  Paige,  620.  Wood- 
'  Woodward  v.  Harris,  2  Barb.  S.  C.  B.  ard  v.  Aspinwall,  3  Sandf.  S.  C.  B.  272, 

439.     Philips  v.  Berger,  id.  611 ;  affirm-    Sutherland  v.  Briggs,  1  Bare,  34. 
r<l  on  appeal,  8  id.  527.  *  Lawrenson  v.  Butler,  1  Scb.  &  Lefroy, 

:  Rogers  v.  Saunders,  4  Maine  B,  92     13. 


268  Specific  Performance.  rCh.  4. 

already  cited,  said  that  the  weight  of  the  argument  was  in  favor  of  the 
construction,  that  the  agreement  concerning  lands,  to  be  enforced  in 
equity,  should  be  mutually  binding,  and  that  one  party  ought  not  to  be  at 
liberty  to  enforce,  at  his  pleasure,  an  agreement  which  the  other  was  not 
entitled  to  claim.  And  Verplanck,  senator,  in  a  case  in  the  court  of  errors 
in  1841,  expressed  the  same  opinion  ;'  but  both  agreed  that  the  law  was 
well  settled  the  other  way,  both  in  this  country  and  Great  Britain.  The 
law,  as  settled,  grew  out  of  the  phraseology  of  the  statute  of  frauds,  which 
did  not,  under  the  former  statute,  require  the  note  or  memorandum  of 
the  agreement  to  be  signed,  nor,  under  the  revised  statutes,  to  be  sjtb- 
scribed,  save  by  the  party  to  be  charged.2  The  revisers  recommended  a 
change  in  the  language  of  the  act,  so  as  to  conform  it  to  the  opinion  of 
Lord  Redesdale  and  Chancellor  Kent ;  but  the  legislature  rejected  that 
alteration  and  adhered  to  the  old  words.3  The  contract  in  these  cases 
is  morally  binding  on  both  sides,  and  the  promises  to  buy  and  sell  are 
mutual  considerations  for  each  other.  The  statute  then  requires  written 
evidence  of  the  bargain.  One  party  gives  this,  and  it  is  his  own  neglert 
that  alone  prevents  him  from  obtaining  the  same  evidence  from  the  other. 
But  he  ought  not  to  take  advantage  of  his  own  nec-li^ence,  nor  should 
that  free  him  from  the  legal  effect  of  his  own  promise,  duly  evidenced 
in  writing,  according  to  law.4 

The  cases  already  cited  to  show  that  a  contract  to  be  enforced  speci- 
fically, must  be  founded  upon  an  adequate  consideration,  and  must  be 
mutual  and  certain,  prove  also  that  it  must  be  fair  and  just  in  all  its 
parts,  and  not  a  hard  or  unconscionable  bargain.  If  the  agreement  be 
a  hard  and  unreasonable  one,5  if  it  lack  mutuality,  if  it  be  uncertain,  or 
if  it  be  upon  an  inadequate  consideration,  if  it  be  tainted  with  fraud,  or 
it  the  performance  of  it  be  unlawful,  or  would  subject  the  party  to  a 
penalty,  or  if  its  performance  has  become  impossible,  equity  will  not 
order  it  to  be  enforced,  but  leave  the  parties  to  their  remedies  at  law.6 

In  general,  specific  performance  will  not  be  decreed,  if  the  remedy  at 
law  upon  the  agreement  be  adequate,  and  will  afford  complete  relief  and 
be  not  embarrassed  by  any  circumstances  rendering  the  interposition  of  a 
court  of  equity  necessary.     If  compensation  in  damages  will  put  the  ag- 

1  Davis  v.  Shields,  26  Wend.  362.  "  Kimberly  v.  Jennings,  6  Sim.  340 

5  1  R.  L.  78,  §  11.     2  R.  S.  135,  §  2.  6  Thompson  v.  Thompson,  7  Ves.  473. 

8  3  R.  S.  2  ed.  656,  revisers'  notes.  Piatt  v.  Adams,  7  Paige,  615,  and  sea 

4  Per  Verplanck,  in  Davis  v.  Shields,  26  ante. 
Wi-mI  303. 


Ch.  d.j  Infants.  2G9 

grieved  party  in  a  situation  as  beneficial  to  himself,  as  if  the  agreement 
were  specifically  performed,  he  will,  in  general,  be  left  to  his  remedy  at  law." 
The  foregoing  remarks  are  sufficient  to  show  the  general  grounds  on 
which  relief  in  equity  is  granted  or  refused  in  cases  of  this  nature.  They 
will  be  again  to  a  certain  extent  brought  under  review,  when  we  come  to 
consider,  more  at  large,  some  of  the  leading  cases  on  the  subject. 

"When  specific  performance  of  a  contract  would  be  decreed  between  the 
original  parties  to  a  contract,  it  will  be  decreed  between  all  claiming  un- 
der them,  if  there  are  no  intervening  equities  controling  the  case.2  At 
common  law,  if  the  estate  of  the  contracting  party  devolved  upon  an  in- 
fant, by  the  death  of  the  party  to  the  contract,  the  remedy  to  enforce  spe- 
cific performance  was  delayed  until  the  infant  became  of  age  ;  and  if  the 
party  became  lunatic,  the  remedy  was  deferred  until  the  disability  was 
removed.3  In  England,  by  recent  statutes,  the  court,  in  these  cases,  after 
a  decree  has  been  pronounced,  may  direct  a  conveyance  as  in  the  case  of 
an  incapacitated  trustee.4  In  New- York  it  is  enacted,  that  the  court  of 
chancery  (now  the  supreme  court  or  county  court)  shall  have  power  to 
decree,  and  compel  a  specific  performance,  by  any  infant  heir  or  other  per- 
son, of  any  bargain,  contract  or  agreement,  made  by  any  party  who  may 
die  before  the  performance  thereof,  on  petition  of  the  executors  or  admin- 
istrators of  the  estate  of  the  deceased,  or  of  any  person  or  persons  inter- 
ested in  such  bargain,  contract  or  agreement,  and  on  hearing  all  parties 
concerned,  and  being  satisfied  that  the  specific  performance  of  such  bar- 
gain, contract  or  agreement  ought  to  be  decreed  or  compelled.5  This 
provision  was  first  adopted  by  the  act  of  1814,  to  remedy  the  necessity 
of  a  special  application  to  the  legislature,  which  before  that  time  was  the 
only  remedy,  in  case  the  obtaining  of  title,  before  the  infant  arrived  at 
mature  age,  was  necessary.* 

This  statute,  however,  has  no  extra-territorial  efficacy ;  and  hence,  if 
the  lands  of  an  infant  heir,  which  the  ancestor  was  under  an  agreement 
to  convey,  are  situated  in  another  state,  and  the  infant  be  domi- 
ciled in  this  state,  the  court  may  decree  as  pecific  performance  of 
the  agreement,  and  direct  a  conveyance  when  the  infant  arrives  at 
full  age ;  and  that  in  the  meantime  the  vendee  be  permitted  to  retain 
the   possession   of   the    property.7      The    chancellor   said   it    was    pei- 

1  Pee   remarks  of  Lord  Redesdale,  in  a  Hays  v.  Hall,  4  Porter,  374. 

Harnet  v.  Yielding,  2  Sch.  &   Lefr.  552,  3  Adams'  Eq.  81. 

553.    Ualsey  v.  Grant,  13  Ves.  77.   Cath-  4  1  Win.  4,  c.  GO,  §§  16,  17.   Id.  65,  §  27, 

cart  v.  Robinson,  5,  Peters,  264.     1  Fonb.  6  2  R.  S.  194,  §  169. 

Eq.  B.  1,  ch.  l,f   6  and  notes.     Flint  v.  •  Laws  of  1814,  p.  128,  129,  §  3. 

Brandon,  8  Ves.  163.  *  Sutphen  v.  Fowler,  9  Paige,  280, 


270  Specific  Performance.  [Ch.  4 

fectly  well  settled,  that  a  court  of  equity  has  jurisdiction  to  decree  the 
specific  performance  of  a  contract  for  the  sale  of  lands  in  another  state, 
•when  the  person  of  the  defendant  is  within  the  reach  of  its  process.1 

A  contract  to  convey  lands,  which  is  signed  by  the  husband  and  wife, 
but  is  not  duly  acknowledged  by  the  wife,  is  the  contract  of  the  husband 
only  ;  and  is  neither  binding  upon  the  wife,  nor  upon  her  heirs  after  her 
death.  The  court,  therefore,  cannot  decree  a  specific  performance  of  it 
against  the  wife  in  her  lifetime,  nor  against  her  heirs  on  her  decease.2 

In  case  the  party  to  a  contract  afterwards  becomes  a  lunatic,  a  court 
of  equity  in  New- York  has  authority,  by  statute,  to  decree  and  compel 
the  specific  performance  of  any  bargain,  contract  or  agreement,  which 
may  have  been  made  by  any  lunatic  or  other  person  of  unsound  mind, 
while  such  lunatic  or  person  of  unsound  mind  was  capable  to  contract ; 
and  to  direct  the  committee  of  such  person  to  do  and  execute  all  necessary 
conveyances  and  acts  for  that  purpose.3  This  was  merely  the  revision 
of  the  act  of  1801.  which  conveyed  the  like  authority.4  But  this  act  does 
not  reach  the  case  where  the  contract  was  made  by  the  ancestor,  and  the 
duty  to  perform  it  descended  to  his  lunatic  heir.  Other  sections  of  the 
act  apply  to  such  a  case.  Thus,  by  the  19th  section,5  it  is  enacted  that 
whenever  any  idiot,  lunatic  or  other  person  of  unsound  mind,  shall  be 
seised  or  possessed  of  any  real  estate  by  way  of  mortgage,  or  as  a  trustee 
for  others  in  any  manner,  his  committee  may  apply  to  the  court  of 
chancery  (now  the  supreme  court)  for  authority  to  convey  and  assure 
such  real  estate  to  any  other  person  or  persons  entitled  to  such  convey- 
ance or  assurance,  in  such  manner  as  the  said  court  shall  direct ;  upon 
which  a  reference  shall  be  had,  and  the  court,  upon  the  hearing  of  the 
parties  interested,  may  order  such  conveyance  or  assurance  to  be  made. 
And  by  the  20th  section  it  is  further  enacted,  that  on  the  application  of 
any  person  entitled  to  such  conveyance  or  assurance,  by  bill  or  petition, 
the  committee  may  be  compelled  by  the  court  of  chancery,  (now  the  su- 
preme court,)  on  a  hearing  of  all  parties  interested,  to  execute  such  con- 
veyance or  assurance. 

The  foregoing  statutory  provisions  have  been  held  by  an  eminent  equity 
judge,0  to  confer  upon  the  court  sufficient  authority  to  decree  the  specific 

1  Sutphen  v.  Fowler,  9  Paige,  280.  The  3  2  R.  S.  55,  §  22. 
Earl  of  Arglasse  v.  Muschamp,  1  Vern.  *  *  1  R.  L.  148,  §  5. 
135.     Massie  v.  Watts,    6  Cranch,  148.        6  2  R.  S.  55,  §§  19,  20. 

Perm  v.  Lord  Baltimore,  1  Ves.  sen.  144.        6  Swartwout  v.  Burr,  1  Barb.  S.  C.  R 

2  Krowles  v.  McCamly,  10  Paige,  342.    495, 499,  per  Paige,  J. 
Martin  v.  D welly,  6  Wend.  9. 


Oh.  4.1  As  to  Personal  Property.  271 

execution,  by  a  lunatic  heir,  of  a  contract  for  the  sale  of  land,  made  by 
the  ancestor  in  his  lifetime.  The  same  learned  judge  said  on  the  same 
occasion,  that  when  a  contract  is  made  for  the  sale  of  land,  the  vendor  is 
in  equity  immediately  deemed  a  trustee  of  the  vendee  of  the  rca  estate, 
and  the  vendee  a  trustee  of  the  vendor,  of  the  purchase  money.  The 
trust  in  the  vendor,  for  the  vendee,  attaches  to  the  land  and  binds  the 
heirs  of  the  vendor.1  This  is  the  unquestioned  doctrine  of  courts  of 
equity,  and  results  from  the  principle,  that  what  is  contracted  to  be  done 
for  a  valuable  consideration,  is  considered  as  done,  and  nearly  all  the  con 
sequences  arise,  as  if  it  had  been  so,  and  as  if  a  conveyance  had  been 
made  at  the  time  to  the  vendee.2  At  law,  it  is  otherwise.  There  tho 
estate  remains  the  estate  of  the  vendor,  until  the  conveyance  is  executed, 
and  the  money  that  of  the  vendee,  until  it  is  paid.  But  it  is  not  so  in 
equity,  as  has  already  been  shown.3  Hence  it  follows,  that  on  the  death 
of  the  ancestor,  who  had  made  a  valid  agreement  to  sell,  the  estate  de- 
scended to  the  lunatic  heir,  charged  with  the  trust  which  the  court  was 
authorized  by  the  statute  to  cause  to  be  executed. 

The  agreements  which  courts  of  equity  will  specifically  enforce  may  be 
divided  into  three  general  heads ;  1st.  Those  which  relate  to  personal 
property ;  2d.  Those  which  relate  to  personal  acts ;  and  3d.  Those 
which  relate  to  real  property.  It  has  been  shown  already,  and  will  ap- 
pear more  fully  as  we  proceed,  that  the  remedy  in  equity,  in  the  cases 
comprehended  under  the  foregoing  heads,  is  not  coextensive  with  the 
wrongs  which  may  happen  under  them. 

(1.)  With  regard  to  contracts  relative  to  personal  property,  courts  of 
equity  have  been  less  inclined  to  interpose  than  in  those  relating  to  real 
estate.  At  an  early  day,  it  was  held  that  a  bill  in  equity  did  not  lie  for 
a  specific  performance  of  an  agreement  to  transfer  stock.4  The  principle 
on  which  relief  was  refused  is,  that  there  can  be  no  difference  between 
cne  man's  stock  and  that  of  another  ;  that  the  remedy  at  law  is  perfect, 
and  that  compensation  in  damages  will  enable  the  party  to  purchase  other 
stock  of  equal  value.  But,  in  modern  times,  a  bill  has  been  held  to  lie  for 
the  specific  performance  of  a  contract  for  the  purchase  of  government 
stock,  where  it  prayed  for  the  delivery  of  certificates  which  gave  the  legal 

1  Swartwout  v.  Burr,  1  Barb.  S.  C.  E.    713.     Lechmere  v.  Earl  of  Carlisle,  3  id. 
499.     Champion  v  Brown,   6  J.  Ch.  R.     215.     Bash  v.  Dalway,  3  Atk.  533. 
402  et  seq.     Craig  v.  Leslie,  3  Wheat.  577.        3  Seton  v.  Slade,  7  Yes.  274.     1  Mad. 
Peter  v.  Beverly,    10  Peters,  532.  Ch.  Pr.  289. 

*  Frederick  v.  Frederick.   1  P.    Wins.        *  Cud  v.  Butter,  1  P.  Wins.  570.     Nut- 
brown  v.  Thornton,  10  Yes.  ICO. 


272  Specific  Performance.  [Ch.  4. 

title  to  the  stock.1  The  plaintiff  in  that  case,  not  being  the  original 
holder  of  the  scrip,  but  merely  the  bearer,  the  vice  chancellor  thought  he 
might  not  be  able  to  maintain  any  action  at  law  upon  the  contract,  and 
that  if  he  had  any  title,  it  must  be  in  equity. 

But  there  are  numerous  cases  in  which  equity  will  interpose,  and  order 
•i  particular  chattel  to  be  given  up.  Thus,  in  an  early  case,  where  land 
was  held  by  the  tenure  of  a  horn  or  cor  nag  e,  on  which  horn  there  was  a 
peculiar  inscription,  the  court  entertained  a  bill  for  the  delivery  of  it  to  the 
plaintiff.2  This,  as  was  said  by  Lord  Eldon  in  Nutbrown  v.  Thornton, 
(10  Ves.  163.)  turned  upon  the  pretium  affectionis,  independently  of  the 
circumstance  as  to  tenure.  In  the  latter  character  it  savored  of  the 
realty,  and  in  the  former  it  was  not  susceptible  of  compensation  in 
damages.  • 

There  are  cases,  however,  in  which  the  court  grants  specific  perform- 
ance of  agreements  of  a  personal  nature.  Thus,  in  an  early  case,3  the 
defendants  entered  into  an  agreement  in  writing  with  the  plaintiff  for  the 
purchase  of  large  parcels  of  wood,  consisting  of  oaks,  ashes,  elms  and 
asps,  which  are  numbered,  figured  and  cyphered,  standing  and  being 
within  the  township  of  Kirby,  for  the  sum  of  £3050,  to  be  paid  at  six 
several  payments,  every  lady  day,  for  the  six  following  years ;  and  the 
defendants  to  have  eight  years  for  disposing  of  the  same,  and  that  arti- 
cles of  agreement  should  be  drawn  and  perfected  as  soon  as  conveniently 
could  be,  with  all  the  usual  covenants,  &c.  The  agreement  was  signed 
by  all  the  parties,  and  the  bill  was  brought  by  the  vendor  for  the  spe- 
cific performance  of  it.  After  a  discussion  of  the  matter,  Lord  Hardwicke 
observed,  that  the  subject  was  divided  into  two  questions  ;  first,  whether 
the  plaintiff  is  entitled  to  seek  his  remedy  in  a  court  of  equity  for  a  spe- 
cific performance  ;  and  secondly,  whether  as  to  the  merits  of  his  case  he 
is  entitled  to  such  a  decree. 

As  to  the  first,  his  lordship  said,  I  am  of  opinion,  that  this  is  such  an 
agreement,  though  for  a  personal  chattel,  that  the  plaintiff  may  come 
here  to  have  a  specific  performance. 

To  be  sure,  in  general,  said  he,  this  court  will  not  entertain  a  bill  for 
a  specific  performance  of  contracts  of  stock,  corn,  hops,  &c.,  for  as  these 
are  contracts  which  relate  to  merchandise,  that  vary  according  to  differ- 
ent times  and  circumstances,  if  a  court  of  equity  should  admit  such  bills. 
it  might  drive  on  parties  to  the  execution  of  a  contract,  to  the  ruin  of  one 

1  Doloret  v.  Rothschild,  1  Sim.  &  Stu.  v.  Loaring,  6  Ves.  773.  Livingston  r« 
50i).  Lynch,  4  J.  Ch.  R.  596. 

1  Pusey  v.  Pusey  1  Vern.  273.    Lloyd        3  Buxton  v.  Lester,  3  Atk.  382. 


Ch.  4.]  As  to  Personal  Property.  273 

side,  -when,  upon  an  action,  that  party  might  not  have  paid  ahove  a  shil- 
ling damage.  Therefore,  the  court  have  always  governed  themselves  in 
this  manner,  and  left  it  to  law,  where  the  remedy  is  so  much  more  expe- 
ditious. As  to  the  cases  of  contracts  for  the  purchase  of  lands  or  things 
that  relate  to  realties,  these  are  a  permanent  nature,  and  if  a  person 
agrees  to  purchase  them,  it  is  on  a  particular  liking  to  the  land,  and  is 
quite  a  different  thing  from  matters  in  the  way  of  trade. 

Notwithstanding  this  general  distinction  between  personal  contracts 
and  contracts  for  land,  his  lordship  stated,  that  there  were  some  cases 
where  persons  may  come  into  a  court  of  equity,  to  enforce  personal 
contracts,  and  he  cited  as  in  point  the  case  of  Taylor  v.  Neville,  which 
was  a  bill  for  the  performance  of  articles  for  the  sale  of  eight  hundred 
tons  of  iron,  to  be  paid  for  in  a  certain  number  of  years,  and  by  install- 
ments, and  a  specific  performance  was  decreed.1 

In  the  same  case  Lord  Hardwicke  pointed  out  a  distinction  between 
contracts  of  a  personal  natui'e,  not  immediately  to  be  performed  and 
peculiar  in  their  character,  and  those  -which  are  immediately  to  be  execu- 
ted. In  the  former  case,  several  circumstances  may  concur.  Thus,  a 
man  may  contract  for  the  purchase  of  a  great  quantity  of  timber,  as  a 
ship  carpenter,  by  reason  of  the  vicinity  of  the  timber,  and  this  ou  the 
part  of  the  buyer. 

On  the  part  of  the  seller,  suppose  a  man  wants  to  clear  his  land,  in 
order  to  turn  it  to  a  particular  sort  of  husbandry,  there  nothing  can 
answer  the  justice  of  the  case,  but  the  performance  of  the  contract  in 
specie. 

In  the  case  of  John,  Duke  of  Buckinghamshire  v.  Ward,  a  bill  waa 
brought  for  a  specific  performance  of  a  lease  relating  to  alum  works 
ami  the  trade  thereof,  which  would  be  greatly  damaged  if  the  covenant 
was  not  performed  on  the  part  of  "Ward.  The  covenants  lay  there  in 
damages,  and  yet  the  court  considered  if  they  did  not  make  such  a  decree, 
an  action  afterwards  would  not  answer  the  justice  of  the  case,  and,  there- 
fore, decreed  a  specific  performance. 

Suppose,  he  furthers  observes,  two  partners  should  enter  into  an 
agreement  to  carry  on  a  trade  together,  and  it  should  be  specified  in  tho 
memorandum  that  articles  should  be  drawn  pursuant  to  it,  and,  before 
they  are  drawn,  one  of  the  parties  flies  off,  I  should  be  of  opinion,  upon  a 
bill  brought  by  the  other,  in  this  court,  for  a  specific  performance,  that 
notwithstanding  it  is  in  relation  to  a  chattel  interest,  yet  a  specific  per- 
formance ought  to  be  decreed. 

'  Taylor  v.  Neville,  cited  in  Buxton  v.  Lester,  3  Atk.  38i. 
Kq.  Jur.  35 


274  Specific  Performance.  [Ch.  4 

On  the  circumstances  of  the  case  before  him,  he  thought  the  hill  ought 
to  be  entertained,  but  at  the  same  time,  he  added,  that  courts  ought  to 
•weigh  with  great  nicety  cases  of  this  kind,  before  they  determine  the 
bill  proper,  when  it  is  a  mere  personal  chattel. 

This  case  of  Buxton  v.  Lister,  already  considered  much  at  length, 
affords  an  apt  illustration  of  the  principles  as  well  of  withholding  as  of 
granting  relief,  when  a  specific  performance  of  an  agreement  is  invoked 
The  defendants  had  only  offered  2800  pounds  for  the  timber,  and  tho 
plaintiff  insisted  upon  3500,  and  stated  that  F.  and  C,  two  timber  mer- 
chants, had  valued  it  at  so  much,  and  that  this  was  true  on  his  honor, 
and  when  he  said  a  thing  on  his  honor,  the  defendant  ought  to  believe  it. 
The  defendants  afterwards  agreed  to  give  3050  pounds  for  the  wood,  on 
the  opinion  they  had  of  the  judgment  of  F.  and  C.  It  turned  out,  how- 
ever, that  F.  and  C.  did  not  set  any  greater  valuation  than  2500  pounds 
upon  the  timber,  and  this  misrepresentation  was  the  ground  which  in- 
duced the  defendants  to  enter  into  the  agreement.  And  because  of  this 
misrepresentation,  the  court  refused  to  compel  the  defendants  to  execute 
the  agreement,  and  dismissed  the  bill. 

The  principle  on  which  courts  of  equity  decree  the  specific  perform- 
ance of  contracts  does  not  rest  upon  any  distinction  between  realty  and 
personalty,  but  because  damages  at  law  may  not,  in  the  particular  case, 
afford  a  complete  remedy.  Thus,  specific  performance  was  decreed,  at 
the  suit  of  the  vendor,  of  a  contract  for  the  sale  of  debts  proved  under  a 
commission  of  bankruptcy.1  The  court  said  that  damages  at  law  could 
not  accurately  represent  the  value  of  the  future  dividends  ;  and  to  com- 
pel the  purchaser  to  take  such  damages',  would  be  to  compel  him  to  sell 
these  dividends  at  a  conjectural  price. 

Nor  did  it  alter  the  case  that  the  vendor  was  the  party  seeking  not 
the  uncertain  dividends,  but  the  certain  sum  to  be  paid  for  them.  It  is 
well  settled  that  the  remedy  in  equity  must  be  mutual,  and  that  where 
the  bill  will  lie  for  the  purchaser,  it  will  also  lie  for  the  vendor.2 

In  one  case,  specific  performance  was  decreed  in  the  house  of  lords  of 
a  contract  to  pay  the  plaintiff  a  certain  annual  sum  for  his  life,  and  also  a 
certain  other  sum  for  every  hundred  weight  of  brass  wire  manufactured 
by  the  defendant  during  the  life  of  the  plaintiff.  Damages  in  such  case 
would  be  no  complete  remedy,  being  to  be  calculated  merely  by  conjec- 
ture ;  and  to  compel  the  plaintiff  in  such  a  case  to  take  damages,  would 

1  Adderly  v.  Dixon,  1  Sim.  &  Stuart,  G07.    5  Id 


Chi  -i.]  As  to  Personal  Property,  275 

be  to  compel  him  to  sell  the  annual  provision  during  his  life,  for  which  he 
Siad  contracted,  at  a  conjectural  price.1 

The  principle  of  the  foregoing  cases  was  well  illustrated  by  a  recent 
case,  in  New-York.2  In  that  case  the  plaintiff  was  the  owner  of  a  judg- 
ment against  a  third  party  for  $9837.66,  on  which  a  creditor's  hill  had 
been  filed.  During  the  pendency  of  the  suit  the  defendant  entered  into 
a  contract  with  the  plaintiff,  whereby  the  latter  agreed  that  for  $4500  of 
the  costs  he  would  compromise  the  claim.  The  defendant  afterwards  de- 
clined to  perform  the  contract,  and  the  plaintiff  filed  a  bill  for  a  specific 
performance.  The  court  treated  the  contract  as  one  for  the  absolute  pur- 
chase, by  the  defendant,  of  the  plaintiff's  judgment,  and  entertained  no  doubt 
that  a  bill  for  a  specific  performance  would  lie.  And  the  learned  judge 
stated  the  principle  to  be,  that  where  an  aAvard  of  damages  would  not  put  the 
party  in  a  situation  as  beneficial  as  if  the  agreement  were  specifically  per- 
formed, or  if  the  compensation  in  damages  would  fall  short  of  the  redress 
which  his  situation  might  require,  it  was  a  proper  case  to  decree  the  exe- 
cution of  it  in  specie.  The  judge  remarked  that  the  contract  in  this  case 
respected  a  chose  in  action,  viz.  the  sale  or  compromise  of  a  judgment. 
And  for  the  defendant's  refusal  to  complete  his  purchase,  an  action  at  law 
would  lie,  and  damages  could  be  recovered  against  him.  But  what  dam- 
ages? And  would  that  be  a  complete  and  satisfactory  remedy'?  The 
remedy  of  a  specific  performance  is  mutual  and  reciprocal,  as  well  for 
tte  vendor  as  the  purchaser  5  and  the  true  inquiry  is,  would  an  action  at 
law  afford  to  the  defendant  a  complete  and  satisfactory  remedy,  if  the 
plaintiff  had  refused  to  assign  or  release  the  judgment  according  to  his 
contract?  The  judge  said  he  could  well  imagine  many  uses  to  which 
the  defendant  might  have  put  the  judgment,  which  could  not  be  at  all, 
except  by  very  vague  conjectures,  measured  or  estimated.  And  if,  on 
that  account,  he  would  have  been  entitled  to  a  specific  performance,  then, 
for  the  same  reason,  the  plaintiff  would  be  entitled. 

In  some  of  the  foregoing  cases  the  covenant  savored  of  the  realty,  but 
the  decision  was  not  put  upon  that  ground,  but  upon  the  imperfection  of 
the  remedy  at  law.  Though  it  be  the  general  rule  that  courts  of  equity 
do  not  ordinarily  enforce  the  specific  execution  of  contracts  relating  to 
personal  property,  because  courts  of  law  usually  afford  a  complete  rem- 
edy 5  yet,  whenever  a  violation  of  the  contract  cannot  be  correctly  esti- 
mated in  damages,  or,  wherever,  from  the  nature  of  the  contract,  a  specific 

1  Ball  v.  Coggs,  1  Bro.  P.  C.  140.  608  ;  affirmed  on  appeal,  8  id.  527.    Wood 

a  Ptiilios  v.  Berger,  2  Barb.  S.  0.  R.    v.  Rowcliffi,  3  Hare,  304. 


570  Specific  Performance.  [Ch.  4 

performance  is  indispensable  to  justice,  a  court  of  equity  will  not  be  de 
lerred  from  interfering,  because  the  contract  relates  to  personal  property. 
The  courts  in  this  country  have  inclined  to  carry  the  doctrine  of  specific  per 
fonnance,  with  respect  to  personal  property,  further  than  it  is  in  England.' 

In  considering  the  cases  where  equity  interferes  to  enforce  contracts 
specifically,  relative  to  personal  property,  some  of  the  illustrations  would 
not  be  inappropriate  under  the  second  head  ;  namely,  contracts  which  re 
late  to  personal  acts.  Indeed,  no  division  of  the  subject  can  be  so  accu 
rately  drawn  that  the  cases  will  not  run  into  each  other. 

(2.)  "VVe  proceed  now  to  notice  the  doctrine  with  respect  to  decreeing  the 
performance  of  personal  acts. 

These  cases  depend  upon  the  same  principle,  that  damages  afford  an 
inadequate  relief,  and  that  performance  in  specie  will  alone  answer  the  pur- 
poses of  justice.  Thus,  in  a  recent  case,3  Chancellor  Walworth  held  that 
the  court  had  jurisdiction  to  compel  the  specific  performance,  by  the  de- 
fendant, of  a  covenant  to  do  certain  specified  work,  or  to  make  certain 
improvements,  or  erections  upon  his  own  land,  for  the  benefit  of  the  com- 
plainant, as  the  owner  of  the  adjoining  property,  who  had  an  interest  in 
having  such  work  done,  or  such  improvements  or  erections  made  ;  and 
where  the  injury  to  the  complainant,  from  the  breach  of  the  covenant,  was 
of  such  a  nature  as  not  to  be  capable  of  being  adequately  compensated 
in  damages.  The  case  was  this :  The  complainant  granted  to  the  cor- 
poration of  the  city  of  New- York  certain  lands,  for  the  purposes  of  a 
public  square,  upon  condition  that  such  lands  should  forever  be  used  and 
appropriated,  for  the  purposes  of  a  public  square,  exclusively,  and 
upon  the  further  condition,  that  the  corporation  should  immediately 
proceed  to  regulate  the  lands  granted,  and  should  inclose  and  improve 
the  same  in  the  manner  specified  in  the  conveyance  thereof.  The 
corporation  joined  in  such  deed,  by  executing  it  under  the  corporate 
seal,  and  covenanted  to  stand  seised  of  the  premises  for  the  purpose 
of  a  public1  square,  exclusively,  and  that  such  corporation  would  abide 
by,  observe  and  perform  the  conditions  imposed  upon  it  by  the  accept- 
ance of  such  agreement  and  conveyance.  The  chancellor  held  that  the 
corporation  was  bound  to  perform  the  conditions  specified  in  the  convey- 
ance, and  wras  liable  to  respond  to  the  complainant,  in  damages,  for  the 
non-performance  thereof.     And  it  was  further  held,  that  the  complain 

:  Fells  v.  Reed,  3  Ves.  70.    Sullivan  v.        2  Barr  v.  Lapsly,  1  Wheat,  152.   Philipa 
Turk.  1  Maryl.  Ch.  Decis.  59.     Waters  v.    v.  Berger,  2  Barb.  S.  C.  R.  608. 
Howard,  id.  112.  3  Stuyvesant  v. The  Mayor  of  N\  Y.,  11 

Pahje,  414,  427. 


Ch.  4.]  Contracts  as  to  Personal  Acts.  -277 

ant  had  a  light,  at  his  election,  to  re-enter  for  a  non-performance  of  the 
conditions  of  the  deed  ;  or  to  bring  an  action  for  the  damages  sustained 
t>y  the  breach  of  the  covenants  of  the  corporation ;  or  to  file  a  bill  in 
equity,  to  compel  a  specific  performance  of  these  covenants.1 

On  the  same  principle,  where  a  railroad  company,  upon  an  adequate 
consideration,  agreed  with  the  plaintiff,  through  whose  pleasure  grounds 
they  laid  their  railroad,  to  construct  and  forever  maintain  one  neat  arch 
vvav.  suilicient  to  permit  a  loaded  carriage  of  hay  to  pass  under  the  arch 
way,  at  such  place  as  the  plaintiff,  his  heirs  and  assigns  should  think 
most  convenient,  in  his  pleasure  grounds,  and  to  form  and  complete  the  ap- 
proaches to  such  archway,  it  was  held  that  the  court  had  jurisdiction  to 
enforce  the  specific  performance  of  the  contract.2 

In  this  case  damages  would  not  be  an  adequate  compensation  :  and 
there  is  no  principle  on  which  they  could  be  accurately  estimated.  The 
case  is,  therefore,  distinguishable  from  those  where  relief  at  law  is  adequate 
and  complete.3  / 

The  personal  acts  with  respect  to  which  courts  of  equity  entertain 
jurisdiction  to  decree  performance  specifically,  have  reference  to  property 
of  Rome  kind.  There  is  none  where  a  contract  for  personal  services  alone 
has  been  actively  enforced.4  There  are  several,  however,  in  which  the 
court  has  interfered  negatively.  Thus,  in  the  case  of  a  theater  consid- 
ered as  a  partnership,  a  contract  with  the  proprietors  not  to  write  dra- 
matic pieces  for  any  other  theater  is  valid,  and  a  violation  of  it  will  be 
restrained  by  injunction.5  As  was  intimated  by  Lord  Eldon  in  that  case 
it  is  not  unreasonable  that  an  actor  and  a  writer  for  the  stage  should  en- 
gage for  the  talents  of  each  other  ;  and  that  neither  should  write  or  act 
but  for  the  theater  in  which  they  are  jointly  interested.  But  when  there 
is  no  partnership  between  the  parties,  and  the  defendant  has  violated 
his  engagement  to  one  theater  and  formed  a  conflicting  engagement  with 
another,  a  court  of  equity  will  not  interfere  either  actively  to  compel  per- 
formance of  one  contract,  or  negatively  to  prevent  the  performance  of 
the  other,' 

Suppose  the  contract  be,  to  act  at  a  particular  theater,  or  to  sing  at  a 
particular  opera,  and  it  be  broken,  there  is  clearly  no  way  in  which  the 

1  Stuyvesant  v.  The  Mayor  of  N.  Y.,  11  522.     De  Rivafinoli  v.  Corsetti,  4  Paige, 

Paige,  41-1,  427.  204.     Sanquirico  v.  Benedetti,  1  Barb.  S. 

'  Storer  v.  Great  Western  Railway  Co.  C.  R.  315.  Kemble  v.  Kean,  6  Sim.  333. 
2  Y.  &  Col.  48.  6  Morris   v.    Colinan,  18  Yesey.    437. 

s  Flint  v.  Brandon,  8  Yes.  100.  Clarke  v.  Price,  2  Wilson,  157. 

4  Haight   v.    Badgley,    15    Barb.   501.        a  Kemble  v.  Kean,  0  Sim.  333. 
Bambliu  v.  Dunueford,  2  Ed.  V.  Ch,  II. 


278  Specific  Performance.  [Cfi.  4 

court  can  compel  performance.  Sequestration  of  bis  property,  or  a  com 
mitment  to  jail  on  bis  refusal,  is  a  substitute  for  performance  no  better 
than  damages  at  law.  Tbe  court  bas  no  process  by  which  a  fulfillment  of 
the  contract  can  be  compelled.  And  in  such  cases  it  is  proper  to  leave 
tbe  parties  to  a  court  of  law,  and  let  the  damages  be  adjusted  by  a  jury.1 

There  are,  however,  numerous  cases  arising  between  landlord  and  ten- 
ant, and  in  cases  of  partnership,  where  personal  covenants  will  be  decreed 
to  be  enforced.  They  generally  rest  upon  the  reasons  already  stated,  the 
inadequacy  of  the  remedy  at  laAV,  and  the  difficulty  of  ascertaining  the 
damages.  Thus  a  covenant  to  give  a  lease,  or  to  renew  a  lease,  has  been 
required  to  be  executed,  and  to  contain  also  a  covenant  for  a  further 
renewal.2  So  an  agreement  to  form  a  partnership  and  execute  articles 
accordingly  may  be  specifically  enforced.3  So  a  covenant  to  sustain  and 
repair  the  banks  of  a  river.4 

In  many  cases  the  court  interferes  negatively,  and  restrains  a  cove- 
nantor from  a  breach  of  his  agreement,  and  thus,  in  effect,  enforces  a  spe- 
cific performance.  Thus,  injunctions  to  restrain  waste ;  to  prevent  the 
cutting  down  and  removal  of  timber ;  to  prevent  the  removal  of  manure, 
or  crops  at  the  end  of  the  lease,  and  the  like ;  bat  these  cases  more  prop- 
erly belong  to  the  head  of  injunctions. 

Where  a  party  agrees,  for  a  certain  consideration,  to  permit  a  railroad 
corporation  to  construct  a  road  over  his  land,  on  any  one  of  two  or  more 
routes,  at  their  option,  and  to  convey  the  land  to  the  corporation  for 
certain  sums,  according  to  the  route  that  shall  be  taken,  after  the  road 
shall  be  definitely  located,  he  cannot  defend  against  a  bill  for  specific 
performance  of  his  agreement,  by  showing  that  he  was  induced  to 
believe,  either  by  his  own  notions  or  by  the  representations  of  third  per- 
sons, as  to  the  preference  of  one  route  over  another,  that  the  corporation 
would  select  a  route  different  from  that  which  they  finally  adopted  ;  nor 
by  showing  that  the  corporation  or  its  agents  made  representations  as  to 
the  probability  that  one  route  would  be  adopted  in  preference  to  another, 
or  as  to  the  relative  advantages  of  each  route.5  Having,  by  the  terms  of 
the  contract,  stipulated  for  the  right  to  adopt  either  route,  and  to  pay  a 
consideration  for  such  right  of  choice,  all  representations  respecting  the 
probability  of  their  adopting  one  rather  than  the  other  must  be  considered 
as  merged  in  the  agreement.  In  a  contract  of  this  kind,  it  is  obvious 
that  a  specific  performance  is  the  only  adequate  remedy.     The  use  of  the 

1  Kemble   v.  Kean,  6   Sim.   333.     De  3  Buxton  v.  Lister,  3  Atk.  3S7. 

Rivafinoli  v.  Corsetti,  4  Paige,  264.   Kim-  4  3  Kent's  Coin.  467. 

berly  v.  Jennings,  6  Sim.  340.  6  Western  R.  R.  Corporation  v.  Bab* 

*  Turnival  v.  Crew,  3  Atk.  83.  cock,  6  Metcalf,  346.. 


Ch.  4. |  Contracts  as  to  Land.  2"HJ 


land,  when  the  location  is  fixed,  is  absolutely  essential  to  their  franchise 
and  a  compensation  in  damages,  in  an  action  at  law,  would  afford  them 
no  relief' 


< 


(3.)  We  proceed  now  to  the  third  class  of  cases,  where  equity  decrees  a 
specific  performance,  viz.  contracts  relating  to  real  property.  This  class 
embraces  by  far  the  most  numerous  instances  in  which  the  jurisdiction  of 
a  court  of  equity  is  invoked,  to  enforce  this  peculiar  remedy  for  the  viola- 
tion of  contracts.  With  respect  to  the  interference  of  the  court  to  enforce 
contracts  specifically,  relative  to  personal  property,  or  to  perform  specifi- 
cally personal  acts,  we  have  seen  that  the  jurisdiction  is  not  universal ; 
and  that  peculiar  circumstances  must  exist  to  call  forth  the  remedial  agen- 
cy of  the  court ;  the  reason  for  which  is,  that,  in  general,  a  compensation 
in  damages  is  coextensive  with  the  merits  of  the  case.  But  it  is  other- 
wise with  respect  to  contracts  relative  to  real  estate.  Here  the  jurisdic- 
tion to  enforce  performance  is  universal,  not  because  of  the  real  nature  of 
the  land,  but  because  damages  at  law,  which  must  be  calculated  upon  the 
general  money  value  of  land,  may  not  be  a  complete  remedy  to  a  pur- 
chaser, to  whom  the  land  may  have  a  peculiar  and  special  value.2 

The  cases  in  which  equity  grants  specific  performance  of  contracts  rel- 
ative to  land,  may  be  considered  under  two  heads  ;  first,  contracts  by 
parol  within  the  statute  of  frauds,  and  second,  contracts  in  writing  not 
within  the  statute. 

Although  it  be  true  as  a  general  maxim  that  equity  follows  the  law, 
yet  there  are  numerous  cases  where  relief  will  be  granted  by  a  court  of 
equity  in  enforcing  contracts  upon  which  no  action  for  damages  could  be 
maintained  at  law.  This  happens  when  the  party  seeking  relief  has 
failed,  without  fault  or  unreasonable  delay,  to  perform  literally  the  terms 
of  the  contract,  either  in  point  of  time,  or  other  immaterial  circumstance. 
The  strict  performance  which  the  law  requires  of  a  plaintiff,  of  the  parts 
of  the  contract  on  his  part,  operates  sometimes  oppressively.  Thus,  for 
example,  performance  or  an  offer  to  perform  at  the  day,  even  where  time 
is  not  of  the  essence  of  the  contract,  is  indispensable  to  the  maintenance 
of  an  action  at  law ;  but  affords  no  conclusive  objection  to  relief  in  a  court 
of  equity. 

Again,  as  the  interposition  of  courts  of  equity  is  in  some  respects  dis- 
cretionary, they  will  not  enforce  a  specific  performance  in  every  case 
where  an  action  at  law  to  recover  damages  mi  "lit  be  maintained.     If  there 


1  Western  R.  R.  Corporation  v.  Bab-        3  Adderly  v.  Dixon,  1  Sim.  &  Stu.  6<">7 
cock,  G  Metcalf,  34G. 


280  Specific  Performance.  [Ch.  4 

be  circumstances  which  render  a  specific  performance  inequitable  ;  as,  foi 
instance,  if  the  title  of  the  vendor  who  seeks  relief  be  involved  in  diffi- 
culties ;  or  if,  in  any  case,  the  party  seeking  aid  has  conducted  unfairly ; 
if  the  consideration  be  grossly  inadequate  ;  if  the  agreement  were  obtained 
by  fraud,  or  misrepresentation  ;  by  surprise,  mistake  or  undue  advantage  ; 
if  it  be  a  hard  or  an  unconscionable  agreement ;  if  its  performance  will  in- 
volve the  violation  of  law  or  public  policy  j  or  if  the  circumstances  under 
which  it  was  made,  have  so  far  changed  that  it  would  be  unconscientious 
to  enforce  it ;  equity  in  all  these,  and  the  like  cases,  leaves  the  parties  to 
their  remedy  at  law.1 

But,  as  has  been  stated  in  this  chapter  already,  if  the  contract  relative 
to  real  property  is  in  its  nature  and  circumstances  unobjectionable,  it  is 
as  much  a  matter  of  course  for  a  court  of  equity  to  decree  a  specific  per- 
formance, when  the  contract  is  in  writing,  and  is  certain  and  fair  in  all 
its  parts,  and  is  for  an  adequate  consideration,  and  is  capable  of  being 
performed,  as  it  is  for  a  court  of  law  to  give  damages  for  the  breach  of  it -, 
what  those  objections  are,  have  in  part  been  considered,  and  will  be  again 
brought  to  our  notice. 

We  will  now  consider,  in  the  first  place,  under  what  circumstances  a 
specific  performance  will  be  decreed  of  contracts  respecting  land,  which 
come  within  the  purview  of  the  statute  of  frauds.  The  English  stat- 
ute of  frauds  (29  Charles  2d,  ch.  3)  was  substantially  enacted  in  this 
state  in  1787,  (1 R.  L.  75,)  and  it  has  been  pretty  generally  adopted  in  this 
country.  Some  slight  changes  were  made  at  the  revision  in  1830,  and, 
as  now  in  force,  the  enactments  are  as  follows  :  u  No  estate  or  interest  in 
lands,  other  than  leases  for  a  term  not  exceeding  one  year,  nor  any  trust 
or  power,  over  or  concerning  lands,  or  in  any  manner  relating  thereto, 
shall  hereafter  be  created,  granted,  assigned,  surrendered  or  declared,  un- 
less by  act  or  operation  of  law,  or  by  a  deed  or  conveyance  in  writing, 
subscribed  by  the  party  creating,  granting,  assigning,  surrendering  or 
declaring  the  same,  or  by  his  lawful  agent,  thereunto  authorized  by  wri- 
ting."2 §  8  :  "  Every  contract  for  the  leasing  for  a  longer  period  than  ono 
year,  or  for  the  sale  of  any  lands,  or  any  interest  in  lands,  shall  be  void, 
unless  the  contract,  or  some  note  or  memorandum  thereof,  expressing  the 
consideration,  be  in  writing,  and  be  subscribed  by  the  party,  by  whom 
the  lease  or  sale  is  to  be  made." 

1  Seymour  v.  Delancy,  3  Cowen,  445.  552.     Taylor  v.  Longworth,  14  Tet.  R. 

6  J.  Ch.  R.  222.     Hall  v.  Warren,  9  Ves.  172.    King  v.  Hamilton,  4  id.  329.    Pratt 

608.     The  Duke  of  Bedford  v.  The  Trus-  v.  Adams,  7  Paige.  615. 

tee?  of  the  British  Museum,  2  Myl.  &  K.  a  2  R.  S.  134,  §  6. 


Ch.  L\  Oontracts  as  to  Land.  281 

"  In  the  following  cases,  every  agreement  shall  be  void,  unless  such 
agreement,  or  some  note,  or  memorandum  thereof,  expressing  the  consid- 
eration, be  in  writing,  and  subscribed  by  the  party  to  be  charged  there- 
with. 1.  Every  agreement  that,  by  its  terms,  is  not  to  be  performed 
within  one  year  from  the  making  thereof;  2.  Every  special  promise  to 
answer  for  the  debt,  default,  or  miscarriage  of  another  person.  3.  Every 
agreement,  promise,  or  undertaking,  made  upon  consideration  of  marriage, 
except  mutual  promises  to  marry."1  By  the  act  concerning  uses  and 
trusts,  all  resulting  trusts  are  abolished  except  where  the  alienee  named 
in  the  conveyance  shall  have  taken  the  same  as  an  absolute  conveyance,  in 
his  own  name,  without  the  consent  or  knowledge  of  the  person  paying  the 
consideration,  or  where  such  alienee,  in  violation  of  some  trust,  shall  have 
purchased  the  lands  so  conveyed,  with  moneys  belonging  to  another.2  The 
statute,  however,  in  order  to  prevent  frauds,  upholds  a  resulting  trust  in 
favor  of  the  creditors  of  the  party  by  whom  the  consideration  money  is 
paid,  to  the  extent  that  may  be  necessary  to  satisfy  their  just  demands.3 

The  policy  of  the  law  in  thus  requiring  certain  contracts,  and  espe- 
cially those  relating  to  real  estate,  to  be  reduced  to  writing  and  subscribed 
by  the  party  to  be  charged,  is  founded  in  wisdom.  The  common  law  had 
forbidden  a  resort  to  parol  evidence  to  vary,  contradict  or  explain  a  writ- 
ten instrument,  for  reasons  founded  on  the  fallibility  of  memory.4  The 
same  reasons  exist  in  relation  to  the  proof  of  the  entire  contract ;  and 
hmcc,  in  relation  to  cases  within  the  statute,  unless  there  be  some  cir- 
cumstances which  remove  the  danger  against  which  the  statute  was  in- 
tended to  guard,  or  some  new  equity  arises  in  favor  of  their  execution, 
parol  contracts  relative  to  real  estate  cannot  be  enforced.  Before  the 
statute  of  frauds,  it  has  been  shown  by  learned  writers,  that  courts  of 
equity  were  not  in  the  habit  of  enforcing  specifically  parol  contracts  for 
the  sale  of  real  estate,  unless  the  same  were  confessed  in  the  answer,  or, 
they  had  been  partly  performed.5 

It  is  not  upon  any  assumed  power  of  dispensation,  that  courts  of  equity 
entertain  jurisdiction,  and  compel  the  performance  of  agreements  within 
•■he  statute  of  frauds,  and  for  the  breach  of  which  no  action  would  lie  at 
taw.  Courts  of  equity,  as  well  as  courts  of  law,  are  alike  bound  by  the 
statute.  But  whenever  they  intervene  to  enforce  contracts,  not  made  in 
conformity  to  the  statute,  they  do  so,  not  out  of  disregard  to  the  act,  but 
for  the  purpose  of  administering  equities  which  exist  in  subordination  to 

1  2  R.  B.  185,  §2.  "1  Phil.  Ev.  561. 

5  1  It.  B.  728,  j  53.  5  Sugden's  Vendors,  ch.  4,  §  2,  pp.  107, 

'  J.!.  g§51,  52  108.     Greenl.  Ev.  §  202. 

Kg   J  u  ..  ?fi 


282  Specific  Performance.  [Cb.  4. 

its  spirit,  and  in  no  respect  inconsistent  with  its  policy,  or  when  the  par- 
ties themselves  have  waived  its  protection. 

The  modification  of  legal  rules,  -which  occur  the  most  frequently  in  ad- 
ministering the  equity  of  specific  performance,  are  those  -where  parol 
contracts  relative  to  land  are  enforced  on  the  ground  that  they  hav*» 
already  been  performed  in  part ;  in  disregarding  time  as  of  exclusive  im- 
portance ;  and  of  allowing  a  conveyance  -with  compensation  for  defects. 
To  these  may  be  added  the  further  rule,  that  where  a  parol  contract  is 
definitely  stated  in  the  bill,  and  admitted  in  the  answer,  and  the  statute 
is  not  urged  as  a  bar,  a  specific  performance  -will  be  enforced. 

In  the  first  place,  -when  the  answer  allows  the  bargain  to  be  complete, 
and  does  not  insist  on  any  fraud,  there  can  be  no  danger  of  perjury.  If 
the  agreement  be  specifically  set  forth  in  the  complaint,  and  admitted  in 
the  answer,  there  can  be  no  objection  to  the  decree  for  a  specific  per- 
formance.1 Whatever  may  be  the  rule  elsewhere,  there  can  be  no  doubt 
that  in  this  state,  under  the  code,  the  defendant,  unless  he  chooses  to  de- 
mur, can  be  compelled  to  answer  whether  the  agreement  set  forth  in 
the  complaint  was  ever  made  or  not.2  And  if  the  answer  merely  refrains 
from  controverting  the  matters  set  forth  in  the  complaint,  those  matters 
are  taken  as  true  for  the  purpose  of  the  suit.3 

Under  the  former  practice  of  courts  of  equity,  the  statute  of  frauds 
might  have  been  plead  to  a  bill  for  the  specific  performance  of  an  agree- 
ment. If  it  appeared  on  the  face  of  the  bill  that  the  agreement  was 
within  the  statute  of  frauds,  and  no  sufficient  equity  was  set  up  entitling 
the  complainant  to  a  decree  for  a  specific  performance,  the  objection  might 
properly  be  taken  by  demurrer.  And,  in  either  case,  the  defendant, 
instead  of  pleading  or  demurring,  might  have  answered,  and  insisted  in 
his  answer,  on  the  protection  of  the  statute.4  But,  it  is  believed,  that 
under  the  code,  this  latter  mode  cannot  now  be  adopted.  The  defendant 
must  either  demur  to  the  complaint,  if  enough  is  not  stated  therein  to 
entitle  the  complainant  to  the  relief  prayed,  or  he  must  set  up  in  his 
answer  the  facts  which  constitute  his  defense,  in  ordinary  and  concise  lan- 
guage, without  repetition,  unless  he  rests  his  defense  upon  the  denial  of 
the  material  allegations  of  the  complaint.5 

There  are  three  grounds  on  which  the  plaintiff,  when  an  agreement 
by  parol  for  the  sale  of  land  is  admitted  in  the  answer,  may  be  well 
entitled  to  the  relief  prayed ;  1st,  the  admission  of  the  agreement,  by  the 

1  1  Fonb.  Eq.  B.  1.  oh.  3,  §  8,  note  d.  4  Cozine  v.  Graham,  2  Paige,  177.   Ear- 

»  Code  of  1852,  §§  156,  143,  149.  ris  v.  Knickerbacker,  5  Wend.  638. 

«  Code,  §  168.  5  Code,  §§  149,  143 


Cli.  4.J  Part  PerformaxXce.  283 

defendant,  takes  the  case  out  of  the  mischief  against  which  the  statute 
was  intended  to  guard ;  2d,  the  agreement,  although  originally  by  parol 
is  now  reduced  to  writing,  and  subscribed  by  the  party  in  his  sworn 
answer ;  and  3d,  the  defendant,  by  admitting  the  agreement,  and  not 
insisting  on  the  statute,  either  by  answer  or  demurrer,  may  be  taken  as 
having  waived  it,  upon  the  well  known  maxim,  quilibet  renunciare  po- 
test juri  pro  se  introducto.1  A  man  may,  on  principle,  as  well  renounce 
tl  e  benefit  of  the  statute  of  frauds  as  a  defense,  as  the  statute  of  limita- 
tions, or  a  discharge  in  bankruptcy. 

But  though  the  admission  of  the  agreement  be  a  sufficient  ground  on 
which  to  found  a  decree  for  specific  performance,  yet  the  agreement  so 
admitted  must  correspond  with  the  contract  set  forth  in  the  bill,  or  a 
specific  performance  will  not  be  decreed.2  If  the  contract  admitted  in  the 
answer  varies  in  a  manner  essentially  affecting  the  contract,  relief  can- 
not be  granted.  But  if  the  variation  in  the  terms  does  not  enter  into  the 
substance  of  the  contract,  a  decree  will  be  made.3  Thus,  where  the  bill 
alleged  that  the  contract  sought  to  be  enforced,  required  the  purchase 
money  to  be  paid  in  seven  annual  installments  with  interest  annually, 
from  the  date  of  the  contract,  and  the  answer  wholly  denied  that  interest 
was  reserved  by  the  contract,  although  it  admitted  that  the  purchase 
money  was  to  be  paid  in  seven  annual  installments,  it  Avas  held  that  the 
admission  in  the  answer  did  not  entitle  the  complainant  to  the  specific 
performance  of  the  agreement  set  out  in  the  bill.  The  variance  was  too 
fur  material  to  be  disregarded.4  In  such  case,  if  the  plaintiff  wishes  to 
avail  himself  of  the  agreement  confessed  by  the  answer,  he  should  amend 
his  complaint  so  as  to  conform  to  it.5 

It  is  a  well  settled  doctrine  of  courts  of  equity,  that  a  parol  contract 
for  the  conveyance  of  real  estate,  void  by  the  statute  of  frauds,  will,  if 
partly  executed  by  the  party  seeking  relief,  be  specifically  enforced.  The 
principle  in  this  class  of  cases  is,  that  if  one  of  the  contracting  parties 
induces  the  other  so  to  act,  that  if  the  contract  be  abandoned,  he  cannot 
be  restored  to  his  former  position,  the  contract  must  be  considered  as  per- 
fected in  equitv  and  a  refusal  to  complete  it  at  law,  is  in  the  nature  of  a 
fraud.6 

1  1  Fonb.  Eq.  B.  1,  ob.  3,  §  8.    Broom's  "  Byrne  v.  Eomaine,  2  Edw.-Cb.  R.  445. 

Maxims,  646.     Harris  v.  Kuickerbacker,  •  Newton  v.  Swazy,  8  N.  II.  9.     Annan 

1  Wend.  G38.  v.  Men-it,  13  Conn.  478.     Pugh  v.  Good, 

9  Harris  v.  Knickbacker,  5  Wend.  C38.  3  Watts  &  Serg.  56.     Harris  v.  Knicker- 

1  Id.  backer,  5  Wend.  638.     Parkhurst  v.  Van 

Id.  Cortland,  14  J.  R.  15.     Tiltou  v.  Tiltcn, 


284  Specific  Performance.  [Ch.  4. 

But  though  this  principle  be  well  established,  as  a  general  rule,  the 
ipplication  of  it  to  particular  cases  is  not  free  from  difficulty.  At  an 
early  day  part  payment  of  the  purchase  money  -was  thought  to  be  an  act 
of  part  performance,  taking  the  case  out  of  the  operation  of  the  statute.1 
This  has  been  overruled  by  later  cases.2  A  part  payment  does  not  place 
the  party  in  a  condition  in  which  he  cannot  be  restored  to  what  he  haa 
lost,  because  he  can  obtain  compensation  in  a  court  of  law.  The  statute 
of  frauds,  moreover,  by  making  special  provision  for  a  part  payment  on 
the  sale  of  goods,  and  no  corresponding  provision  on  the  sale  of  real  es- 
tate, seems  to  imply  that  a  partial  payment  in  the  latter  case  does  not 
take  the  case  out  of  the  statute.3  The  foregoing  remarks  apply  to  a  case 
of  partial  payment  of  the  consideration.  But  if  the  whole  purchase 
money  be  paid  by  the  vendee  and  accepted  by  the  vendor,  it  would  seem, 
on  principle,  that  the  latter  should  be  compelled  to  execute  the  contract. 
An  entire  performance  by  either  party,  raises  an  equity  in  his  favor  to  a 
corresponding  performance  by  the  other  party.  It  is  a  waiver  of  all  ob- 
objection  to  the  contract ;  and  the  party  wTho  has  thus  accepted  a  per- 
formance, cannot  withhold  an  execution  on  his  part,  without  being  guilty 
of  a  fraud.4 

In  one  case  the  vice  chancellor  of  the  first  circuit,  after  remarking  that 
the  payment  of  the  consideration  was  not  in  general  deemed  such  a  part 
performance  as  to  relieve  a  parol  contract  from  the  operation  of  the  stat- 
ute, took  a  distinction  between  a  payment  in  money,  and  a  payment  in 
labor  and  services.  In  the  former  case,  as  the  re-payment  would  place 
the  parties  in  the  same  situation  in  which  they  were  before,  he  thought 
the  payment  should  not  be  treated  as  an  act  of  part  performance  ;  whereas 
in  the  latter,  as  the  value  of  the  labor  and  services  were  uncertain,  and 
could  not  be  measured  by  any  certain  standard,  and  it  was  thus  out  of 

9  N.  IT.  886.     lFonb.  Eq.  B.  1,  eh.  3,  §8,        *  Pierce   v.    Nichols,    1    Paige,    244. 

notes  a,  b.     Philips  v.  Thompson,  1  J.  Rhodes  v.  Rhodes,  3  Sand.  Ch.  R.  279. 
Ch.R.  131.     Germanv.  Machin,  6  Paige,        The  rules  stated  in  the  text  are  sup- 

288.     Lowry  v.  Tew,  3  Barb.  Ch.R. 407.  posed  to  be  law  in  New-York  and  most 

1  Lacon  v.  Mertins,  3  Atk.  4.  Main  v.  of  the  states.  In  Massachusetts,  juris- 
Melbourne,  4  Vesey,  720.  1  Bridgman's  diction  to  enforce  performance  of  a  parol 
Digest,  62,  §  412.  Wetmore  v.  White,  contract  for  the  sale  of  land,  when  there 
2  Cai.  Cas.  in  Error,  109.  1  Fonb.  Eq.  has  been  a  part  performance,  or  a  full 
B.  1,  ch.  3,  §  8,  note  e.  performance  has  been  declined,  on  the 

2  Sugden's  Vendors,  ch.  3,  §3, 107-112.  ground  that  it  is  not  conferred  by  the 
Olinan  v.  Cooke,  1  Sch.  &  Lefr.  25,  40,  statute  of  that  state,  vesting  the  supremo 
41.     Coles  v.  Trecothick,  9  Yes.  234,  242.  court  with  chancery  powers.     Brooks  v, 

3  Compare  2  R.  S.  135,  §  8,  with  §  3  Wheelock,  11  Pick.  439. 
on  p.  136. 


Ch.  4.J  Part  Performance.  285 

the  power  of  the  other  party  to  restore  the  party  who  had  rendered  the 
services  to  the  same  condition  he  was  in  before  the  services  were  rendered, 
he  thought  the  case  was  clearly  within  the  rule  which  governs  the  court 
in  decreeing  the  specific  performance  of  contracts.1  But  this  distinction 
is  not  founded  in  principle.  Whether  the  purchase  price  of  real  estate  bo 
money,  or  services  to  be  rendered  in  taking  care  of  a  sick  person,  during 
his  lifetime,  as  in  Rhodes  v.  Rhodes,  the  result  ia  precisely  the  same, 
when  the  entire  services  have  been  performed,  as  when,  in  the  other  case, 
the  money  has  been  paid.  The  contract  is,  in  both  cases,  fulfilled  by  the 
purchaser. 

The  act  of  part  performance  which  raises  an  equity  in  favor  of  the  party 
to  a  complete  performance,  should  be  an  act  unequivocal  in  its  character, 
and  be  dune  solely  with  reference  to  the  agreements  being  carried  into 
full  effect.  Thus,  where  the  purchaser  takes  possession  of  the  lands  sold 
by  virtue  of  the  agreement,  with  the  assent  of  the  vendor,  a  court  of  equi- 
ty will  decree  a  specific  performance  ;  and,  especially,  if  improvements  on 
the  premises  be  made  at  the  expense  of  the  party  thus  taking  possession, 
on  the  faith  of  the  fulfillment  of  the  agreement.2 

The  doctrine  on  this  subject  was  thus  expounded  by  Chancellor  Wal- 
worth in  a  recent  case  :3  "  The  principle  upon  which  courts  of  equity 
hold  that  a  part  performance  of  a  parol  agreement  is  sufficient  to  take  a 
case  out  of  the  statute  of  frauds,  is  that  a  party  who  has  permitted 
another  to  perform  acts  on  the  faith  of  an  agreement,  shall  not  be  allowed 
to  insist  that  the  agreement  is  invalid,  because  it  was  not  in  writing,  and 
that  he  is  entitled  to  treat  those  acts  as  if  the  agreement,  in  compliance 
with  which  they  were  performed,  had  not  been  made.  In  other  word?-, 
upon  the  ground  of  fraud  in  refusing  to  execute  the  parol  agreement  after 
a  part  performance  thereof  by  the  other  party,  and  where  he  cannot  be 
placed  in  the  same  situation  that  he  was  in  before  such  part  performance 
by  him.  Taking  possession  under  a  parol  agreement,  and  in  compliance 
with  the  provisions  of  such  agreement,  accompanied  with  other  acts  which 
cannot  be  recalled  so  as  to  place  the  party  taking  possession  ia  the  same 
situation  that  he  was  in  before,  has  always  been  held  to  take  such  agree- 
ment out  of  the  operation  of  the  statute  of  frauds." 

The  party  who  goes  into  possession  of  premises  under  a  contract  to 
purchase,  is  at  law  a  tenant  at  will  to  the  owner  of  the  legal  title.  On 
refusing  to  comply  with  the  agreement,  he  becomes  at  once  a  trespasser, 

1  Rhodes  v.  Rhodes,  Sandf.  Ch.  279,  8  Lowry  v.  Tew,  3  Barb.  Ch.   R.  413. 

2S4.  Wetmore  v.  White  2  Caines'  Ca«.  in  Er« 

a  Parkhnrst  v.  Van  Cortland,  14  J.  R.  ror,  87.     Foxcraft  v.  Lister,  2  Vera  456 
15.     1   Eoub.  Eq.  B.  1.  ch   3,  §  0. 


28G  Specific  Performance.  [Cli.  4 

not  entitled  to  notice  to  quit,  and  liable  to  be  turned  off  by  an  ejectment. 
But  if  lie  is  in  under  a  written  agreement,  made  by  the  owner,  to  sell  and 
convey  the  premises  to  him,  or  under  a  parol  agreement  which  has  been 
so  far  consummated  as  to  entitle  him  to  a  specific  performance,  he  is  in 
equity  considered  as  the  owner  of  that  title  for  which  he  contracted, 
and  which  the  vendor  is  able  to  give  him.2 

To  entitle  a  party  to  take  the  case  out  of  the  statute,  on  the  ground  of 
part  performance  of  the  contract,  he  must  make  out  by  clear  and  satis- 
factory proof  the  existence  of  the  contract,  as  laid  in  his  bill,  and  the  act 
of  part  performance  must  be  of  the  identical  contract  set  up  by  him.  It 
is  not  enough  that  the  act  is  evidence  of  some  agreement,  but  it  must  be 
unequivocal  and  satisfactory  evidence  of  the  particular  agreement  charged 
in  the  bill.3  Whether  the  agreement  be  in  writing  or  by  parol,  it  should, 
in  order  to  entitle  the  party  to  a  specific  performance  of  it,  be  certain  in 
its  terms  and  mutual  in  its  character.4 

The  wisdom  and  policy  of  the  rule,  allowing  part  performance  of  a  pa- 
rol contract  to  take  the  case  out  of  the  statute  of  frauds,  have  been  often 
questioned.5  In  cases  where  the  contract  is  not  admitted  by  the  answer, 
the  trial  of  the  cause  is  attended  with  all  the  evils  which  the  statute  was  in- 
tended to  prevent.  On  one  occasion,  the  chancellor  observed,  that  the 
beneficial  provisions  of  the  statute  of  frauds  have  been  sufficiently  broken 
in  upon  already  ;  and  the  doctrine  of  part  performance  should  not  be  ex- 
tended to  new  cases  which  do  not  come  clearly  within  the  equitable  prin- 
ciples of  previous  decisions.6 

The  general  rule  in  equity  is  the  same  as  at  law,  that  parol  evidence  is 
inadmissible  to  contradict,  vary  or  explain  the  terms  of  a  written  con- 
tract, except  in  an  action  to  reform  it.  A  contract  cannot  rest  partly  in 
writing  and  partly  in  parol.  What  was  said  at  the  time  of  making  the 
contract  and  all  antecedent  conversations,  are  merged  in  the  written 
contract.7 

There  is  a  settled  distinction  between  the  case  of  a  vendor  coming  into 
a  court  of  equity  to  compel  a  vendee  to  performance,  and  of  a  vendee 
resorting  to  equity  to  compel  a  vendor  to  perform.     In  the  first  case,  if 

1  Smith  v.  Stewart,  6  J.  E.  46,  49.  6  German   v.  Machin,    6  Paige,    293. 

2  Lowry  v.  Tew,  3  Barb.  Ch.  R.  414.  Cooth  v.  Jackson,  6  Ves.  27. 

3  Philips  v.  Thompson,  1  J.  Ch.  R.  131.  7  1  Phil.  Ev.  561,  567.  0.  &  H.  Notes, 
Parkhurst  v.  Van  Cortland,  14  J.  R.  15.  1467.    Adams  v.  Wilson,  12  Mete.  135. 

4  German  v.  Maichin,  6  Paige,  288.  Parkhurst  v.  Van  Cortland,  1  J.  Ch.  R- 
6  Lindsay  v.  Lynch,  2  Sch.  &  Lefr.  4,     283.     S.  C.  in  error,  14  J.  E.  15. 

5,  7.    Forster  v.  Hale,  3  Ves.  712,  713. 


Ch   1.]  Part  Perform axce.  287 

the  vendor  cannot  make  out  a  title,  as  to  part  of  the  subject  matter  of 
the  contract,  equity  "will  not  compel  the  vendee  to  perform  the  contract 
pro  ianto.  But  where  a  vendee  seeks  a  specific  execution  of  an  agree- 
ment, there  is  much  greater  reason  for  affording  him  the  aid  of  the  court, 
when  he  is  desirous  of  taking  the  part  to  which  a  title  can  be  made.1 

In  cases  where  the  application  for  relief  has  come  from  the  vendee,  the 
courts  have  not  been  inclined  to  avoid  the  exercise  of  jurisdiction,  if  the 
case  could  be  reasonably  brought  within  the  range  of  previous  determi- 
nations. In  a  recent  case  in  England,  in  a  suit  for  the  specific  perform- 
ance of  a  parol  agreement  for  a  lease  of  a  farm  to  be  granted  by  the 
defendant  to  the  plaintiff,  it  was  alleged  in  the  bill  that  by  the  terms  of 
the  agreement  the  plaintiff  was  to  drain  the  land  at  his  own  expense, 
and  was  to  lay  down  a  certain  arable  field  in  pasture.  The  plaintiff 
entered  upon  the  farm  shortly  after  the  agreement  was  made,  and  expend- 
ed a  considerable  sum  in  drainage  and  repairs,  and  also  laid  down  the 
field  in  pasture.  That  field  was  subsequently  severed  from  the  farm, 
and  an  abatement  of  the  rent  was  made  in  respect  of  it.  The  vice  chan- 
cellor was  of  opinion,  upon  the  facts,  that  so  much  of  the  agreement  set 
up  in  the  bill  as  related  to  the  laying  down  of  the  field  in  pasture  was 
not  proved,  and  consequently  the  agreement  as  proved  differed  from 
that  alleged,  and  he  dismissed  the  bill.'2  On  appeal  to  the  lord  chancel- 
lor, Lord  (Nottingham  was  of  opinion,  upon  the  facts,  that  there  was  suffi- 
cient evidence  of  the  agreement,  and  he  reversed  the  decision  of  the  court 
below,  and  referred  it  to  a  master  to  settle  a  lease  pursuant  to  the  terms 
of  the  agreement.  In  pronouncing  his  judgment,  his  lordship  indicated 
a  willingness  rather  to  extend  than  to  contract,  the  jurisdiction.  "  Courts 
of* equity."  be  observed,  "exercise  their  jurisdiction  in  decreeing  specific 
performance  of  verbal  agreements,  where  there  has  been  part  performance, 
fcr  the  purpose  of  preventing  the  great  injustice  which  would  arise  from 
permitting  the  party  to  escape  from  the  engagements  he  has  entered  into 
upon  the  ground  of  the  statute  of  frauds,  after  the  other  part}-  to  the 
contract  has,  upon  the  faith  of  such  engagement,  expended  his  money,  or 
otherwise  actel  in  execution  of  the  agreement.  Under  such  circumstan- 
ces, the  court  will  struggle  to  prevent  such  injustice  from  being  effected  ; 
and  with  that  object,  it  has  at  the  hearing,  when  the  plaintiff  has  failed 
to  establish  the  precise  terms  of  the  agreement,  endeavored  to  collect 
what  the  terms  of  it  really  were."3  This  case  did  not  adopt  any  new 
principle.     It  merely  applied  to  conflicting  evidence  liberal  and  enlight- 

1  Waters  v.  Travis,  9  J.  R.  450.    Suth-        '  Mnndy  v.  Joliff,  9  Sim.  413. 
orland  v.  Briggs,  1  Hare,  84.  3  Mtmdy  v.  Joliff,  5  Myl.  &  Craig,  177. 


"288  Specific  Performance.  [Oh.  4 

ened  views,  without  seeking  to  introduce  any  new  rule  with  reference  tc 
this  important  branch  of  equity  jurisprudence. 

On  bills  for  a  specific  performance  of  an  agreement  in  writing,  the  de- 
fendant has  frequently  been  admitted  to  show,  by  parol  proof,  a  mistake 
in  such  agreement,  and  by  that  means  to  destroy  the  equity  of  the  bill. 
The  relief  on  such  bills  is  said  to  rest  in  discretion,  and  if  the  defendant 
can  show  surprise  or  mistake,  a  decree  for  specific  performance  of  such  an 
agreement  would  be  unjust.1  In  one  case  Lord  Hardwicke  said,  an  omis- 
sion in  an  agreement  by  mistake,  stood  upon  the  same  ground  as  an  omis- 
sion occasioned  by  fraud.2 

With  respect  to  this  class  of  cases,  the  propriety  of  showing  an  omis- 
sion, or  mistake,  or  surprise,  by  a  defendant  in  answer  to  a  bill  for  a  spe- 
cific performance,  does  not  seem  to  have  been  doubted.  But  there  is 
another  class  of  cases  where  the  object  of  the  parol  proof  is  to  correct 
mistakes  in  agreements  in  aid  of  the  plaintiff's  bill  for  specific  perform- 
ance. Lord  Hardwicke,  in  Joynes  v.  Statham,  (supra,)  seemed  to  think  it 
might  be  done.  But  such  proof  has  been  sometimes  rejected,  when  intro- 
duced on  the  part  of  the  plaintiff  to  sustain  his  bill.3  Chancellor  Kent, 
on  the  contrary,  held,  that  a  mistake  might  thus  be  corrected  on  the 
application  of  the  plaintiff,  and  the  agreement  so  corrected  enforced 
specifically,  and  that  there  would  be  a  most  deplorable  failure  of  justice, 
if  the  mistake  could  only  be  shown  and  corrected  when  set  up  by  a  defend- 
ant to  rebut  an  equity.'  Why,  he  justly  asks,  should  not  the  party  ag- 
grieved by  a  mistake  in  the  agreement,  have  relief  as  well  when  he  is 
plaintiff,  as  when  he  is  defendant?  It  cannot  make  any  difference,  in  the 
reasonableness  and  justice  of  the  remedy,  whether  the  mistake  was  to  the 
prejudice  of  one  party  or  the  other.  If  the  court  has  a  competent  juris- 
diction to  correct  such  mistakes,  (and  of  that  there  is  no  doubt,)  the  agree- 
ment when  corrected  and  made  to  speak  the  real  sense  of  the  parties 
ought  to  be  enforced,  as  well  as  any  other  agreement  perfect  in  the  first 
instance.  It  ought  to  have  the  same  efficacy,  and  be  entitled  to  the  same 
protection,  when  made  accurate  under  the  decree  of  the  court,  as  when 
made  accurate  by  the  act  of  the  parties.3     And  Chancellor  Walworth,  in 

1  Gillespie  v.  Moon,  2  J.  Cb.  R.  598.  8  Iligginson  v.  Clowes,  15  Ves.  516. 
Joynes  v.  Srutham,  3  Atk.  388.  The  Woolatn  v.  Hearne,  7  Ves.  211.  Clinan 
Marquis   of  Townsend  v.  Stangroora,   6    v.  Cooke,  1  Sch.  &  Lef.  3D. 

Ves.    328.     Ramsbottom   v.   Gordon,    1  4  Gillespie  v.  Moon,  2  J.  Ch.  R.  599. 

Ves.  &  Beame,  105.     Clowes  v.  Higgin-  Keisselbrack  v.   Livingston,   4  id.    148. 

son,  1  id.  524.  Gooding  v.  M'Allister,  9  How.  Pr.  R.  123. 

2  Joynes  v.  Statham,  3  Atk.  388.  B  Keisselbrack  v.  Livingston,  i J.  Ch.R, 
Ramsbottom  v.  Gordon,  1  Ves.  &  B.  168.  148. 


Ch.  4.J  As  to  Personal  Property.  2R3 

a  later  case,  assumed  that  the  court  had  jurisdiction,  on  a  bill  for  a  spe- 
cific performance,  if  it  was  property  framed,  to  correct  such  error  in  tne 
agreement  as  "was  the  result  of  fraud,  accident  or  mistake,  and  decree  its 
execution  in  the  corrected  form.1 

It  sometimes  happens  that  a  written  agreement,  subsequently  to  its 
execution,  is  varied  by  a  parol  contract  between  the  parties.  In  sucn 
cases,  it  is  said  that  the  variation,  to  be  available  as  a  defense,  must  be 
accompanied  by  such  a  part  performance  as  would  enable  the  court  to 
enforce  it  if  it  were  an  original,  independent  agreement ;-  subject,  never- 
theless, to  the  doctrine  of  equity,  which  allows  parties  by  their  acts  to 
vary  the  original  agreement  in  respect  of  matters  relating  to  title  and  the 
time  for  completion.3 

A  parol  rescission  of  a  written  contract  may  be  set  up  in  bar  to  a  bil1 
for  a  specific  performance.4 

In  like  manner  a  party  may,  by  parol,  waive  his  right  to  call  for  a  spe 
cific  performance  of  his  contract ;  but  such  waiver  must  be  clearly  and 
distinctly  proved.5  So  a  party  may,  voluntarily  and  by  parol,  abandon 
an  agreement  in  writing  for  the  sale  or  exchange  of  lands,  with  the  assent 
of  the  other  party,  because  he  is  not  in  a  situation  to  perform  the  same ; 
and  if  he  does  so,  he  cannot  afterwards  demand  a  specific  performance.0 

It  was  said  by  Lord  Macclesfield,  that  in  cases  of  fraud  equity  would 
relieve  against  the  words  of  the  statute  ;  and  he  put  a  case,  and  said,  if 
one  agreement  in  writing  should  be  prepared  and  drawn,  and  another 
fraudulently  and  secretly  brought  in,  and  executed  in  lieu  of  the  former, 
in  this  or  such  like  cases  of  fraud,  equity  would  relieve  ;7  but  where  there 
is  no  fraud,  only  relying  upon  the  honor,  word  or  promise  of  the  defend- 
ant, the  statute  making  these  promises  void,  equity  will  not  interfere.8 

The  court  will  not  decree  a  specific  performance,  on  the  application  of 
the  vendor,  when  he  cannot  make  a  clear  and  undoubted  title  to  the  prem 
ises,  unless  the  purchase  has  been  made  at  the  risk  of  the  vendee  as  to 
the  title,  or  the  latter  has  agreed  to  accept  such  title  as  the  vendor  was 
able  to  give.  In  general,  however,  it  is  not  necessary  for  the  complainant 
to  show  that  he  was  able  to  give  a  good  title  at  the  time  of  making  the 
agreement  to  sell,  or  even  at  the  commencement  of  the  suit.  It  will  be 
sufficient  if  he  can  give  a  perfect  title  at  the  time  of  the  decree,,  or  at  the 

1  Coles  v.  Brown,  10  Paige,  535.  Id.  •  M'Corkle  v.  Brown,  9  Sin.  &  Marsh. 
142  1G7. 

2  Trice  v.  Dyer,  17  Yes.  350.  6  Baldwin  v.  Salter,  8  Paige,  473. 

'  Dart  on  Vendors,  488.  "  Yicountess  Monlacute  v.  Maxwell.  1 

*  Walker  v.  Whateley,  2  Humphrey,  T.  P.  Wins.  020. 

R.  111).     England  v.  Jackson,  3  id.  584.  9  Id. 
Eq  .Tor.                                     37 


290  Specific  Performance.  [Oh.  4 

time  when  the  master  makes  his  report.1  And  this,  too,  is  a  good  answer 
to  the  bill  of  the  vendee  to  rescind  the  contract.  For  though  the  vendor 
may  not  have  been  able  to  convey  at  the  time  he  made  the  contract,  or 
at  a  later  day  when  the  vendee  called  for  performance,  yet,  if  he  can  givo 
a  good  title  at  the  time  of  the  decree,  the  complainant  must  accept  it  \ 
but  in  that  case  he  will  be  entitled  to  an  equitable  compensation  for  the 
delay.2 

The  vendor  may  maintain  a  bill  for  a  specific  performance,  though  it 
consists  only  in  the  payment  of  money ;  especially  when  the  contract  is 
lost,  and  the  bill  is  for  discovery  as  well  as  relief.3  In  such  case,  when 
the  bill  charges  that  the  contract,  Avhich  was  lost,  was  executed  by  the 
complainant  and  the  vendee,  and  sets  forth  its  contents,  and  the  defendant 
denies  the  exeution  of  any  such  contract,  but  states  that  the  contract  was 
executed  by  himself  only,  and  points  out  no  other  difference,  it  seems  he 
admits  the  contents  of  the  agreement  as  charged  in  the  bill. 

It  has  already  been  said  that  equity  will  sometimes  decree  the  execu- 
tion of  an  agreement,  with  a  compensation  for  defects.  The  vendor,  it 
has  been  shown,  when  he  seeks  relief  against  the  vendee,  must  himself 
be  able  to  perform  the  contract  on  his  own  part.4  A  mere  trifling,  imma- 
terial defect,  will  not  defeat  a  decree.  If  the  defendant  obtain  by  a  perform- 
ance the  same  title  which  he  expected  to  obtain  when  he  made  the  con- 
tract, a  performance  will  be  decreed.5  Thus,  when  the  land  sold  was 
subject  to  a  fine  for  alienation,  of  which  the  vendee  was  aware,  but  which 
the  scrivener  omitted  to  mention  in  the  agreement,  the  court  in  decreeing 
performance  refused  to  require  compensation  to  be  made. 

So  it  is  no  objection  to  the  vendor's  title  that  the  conveyance  under 
which  he  holds  reserves  minerals  and  water  privileges,  if  there  be  no 
6uch  things  on  the  land.  A  reservation  of  a  peppercorn  or  other  nominal 
rent,  or  a  nominal  fine  reserved  on  alienation,  is  no  objection  to  the 
title  ;  but  a  pre-emptive  right  of  purchase  resei'ved  is.6 

But  where  the  vendor  has  contracted  to  convey  a  title  to  a  tract  of  land, 
the  tHle  to  a  part  of  which  fails,  the  vendee  may  claim  a  specific  per- 


1  Brown  v.  Haff,  5  Paige,  241.    Lang-        2  Pierce  t.  Nichols,  1  Paige,  641. 
ford  v.  Pitt,  2  P.  T7ins.  630.     Clute  v.        3  Crary  v.  Smith,  2  Comst.  60,  64. 
Robinson,  2  J.  P.  595.     Coffin  v.  Cooper,        *  Brown  y.  Haff,  5  Paige,  235,  and  kcc 

14  Ves.   205.     Seymour  v.   Delancy,  3  references,  ante. 
Cowen,  445.     Dutch  Church  v.  Molt,  7        5  Winne  v.  Reyno'ds,  6  Paige,  407. 
I'aige,  77.  ■  Id. 


€h.  4.3  Compensation  for  Defects,  291 

formance  as  to  t#"3  residue  of  the  land,  with  compensation  in  damages  for 
the  nart  the  vendor  is  unable  to  convey,1 

Where  the  vendor  never  had  title  to  the  land  contracted  to  be  sold,  or 
where  he  has  conve}red  the  same  subsequent  to  the  making  of  the  contract 
60  that  he  has  not  the  power  specifically  to  perform  his  contract,  and  that 
fact  is  known  to  the  vendee,  the  latter  cannot  file  a  bill  in  equity,  for  the 
mere  purpose  of  obtaining  compensation  in  damages  for  the  non-perform- 
ance of  the  contract  by  the  vendor;  but  he  must  resort  to  his  remedy  at 
law  for  that  purpose,2  But  where  the  defendant  deprives  himself  of  the 
power  to  perform  his  contract  specifically,  during  the  pendency  of  a  suit 
against  him,  to  compel  such  performance,  the  court  will  retain  the  suit; 
and  will  award  to  the  complainant  a  compensation  in  damages,  for  the 
non-performance  of  the  contract  by  the  defendant3  The  principle  or 
which  this  is  based,  is  to  prevent  a  multiplicity  of  suits.  Besides,  the 
plaintiff,  who  had  a  good  cause  of  action  when  his  bill  was  filed,  ought 
not  to  be  turned  out  of  court,  by  the  mere  act  of  the  defendant,  without 
cither  the  relief  for  which  he  originally  filed  his  bill,  or  a  compensation 
in  lieu  of  it.4 

While  a  court  of  equity  does  not  entertain  jurisdiction  where  the  sole 
object  of  the  bill  is  to  obtain  a  compensation  for  the  breach  of  a  contract, 
except  when  the  contract  is  of  equitable  cognizance  merely,  it  would  seem 
that  if  the  complainant  filed  his  bill  in  good  faith,  supposing  at  the  time 
he  instituted  his  suit,  that  a  specific  performance  could  be  granted,  and 
not  knowing  that  the  defendant  had  previously  parted  with  the  title,  the 
bill  may  be  retained  for  compensation.6 

The  plaintiff  who  seeks  for  the  specific  performance  of  an  agreement' 
must  show  that  he  has  performed,  or  offered  to  perform  on  his  part,  the  acts, 
which  formed  the  consideration  of  the  alleged  undertaking  on  the  part  of* 
the  defendant.6  For  if  the  plaintiff  will  not,  or  through  negligence  can- 
not perform  the  whole  on  his  side,  he  has  no  title  inequity  to  the  perform- 
ance of  the  other  party,  since  such  performance  could  net  be  mutual.7 

It  is  upon  similar  reasoning,  that  where  the  plaintiff  has  shown  a  back- 
wardness in  performing  his  part  of  the  contract,  equity  will  not  decree  & 
specific  performance  in  his  favor,  especially  if  circumstances  are  altered.5 
The  rule  which  withholds  the  aid  of  a  court  of  equity  from  1  party  who 
has  been  guilty  of  negligence  in   performing  his  own  part  of  the  agree- 

1  Moss  v.  Elmcndorf,  11  Paige,  277.  *  Woodward  v.  Harris,  2  Barb.  439, 

1  Id.     Hatch  v.  Cobb,  4  J.  Oh.  Ii.  559.        '  Id. 
Cciiipshnll  v.  Stone,  5  id.  193.  «  Colson  v.  Thompson,  2  Wheat.  826 

*  Moss  v.  Elinendorf  11  Pai.ire,  288.  T  1  Fonb.  Eq.  B.  1,  oh.  C>.  g  2. 

•Id. 


292  Specific  Performance.  [Ch,  4. 

merit,  is  founded  in  the  soundest  principles  of  policy  and  justice.  Its 
tendency  is  to  uphold  good  faith  and  punctuality  in  dealing.  The  notion 
that  a  party  may  disregard  his  own  part  of  a  contract,  and  obtain  relief 
in  equity  from  the  penalty  of  his  gross  negligence,  is  injurious  to  good 
morals,  to  a  lively  sense  of  obligation,  to  the  sanctity  of  contracts,  and 
to  the  character  of  the  court.  The  maxim,  vigilantibus  non  dormienti 
bus,  leges  subveniunt,  is  not  "without  good  sense  in  its  general  bearing; 
but  it  has  peculiar  force  and  pertinence  in  a  case  where  specific  perform- 
ance of  agreements  is  sought.  In  a  country  where  the  value  of  real 
estate  is  fluctuating,  and  where  competition,  enterprise  and  speculation 
are  constantly  changing  the  relative  importance  of  different  kinds  of 
business,  as  well  as  the  relative  value  of  property,  parties  ought  not  to 
be  permitted  to  lie  by  and  speculate  on  their  own  contracts,  fulfilling  them 
if  advantageous,  or  disregarding  them  if  their  interest  seems  to  lead  in 
that  direction.1  Accordingly,  if  the  plaintiff  has  been  guilty  of  gross 
laches,  or  if  he  has  not  applied  for  relief  until  after  a  long  lapse  of  time,  un- 
explained by  equitable  circumstances,  his  bill  will  be  dismissed.  A  court 
of  equity  will  not  administer  relief  to  gross  negligence  any  more  than  a 
court  of  law.2  The  party,  to  entitle  himself  to  the  aid  of  the  court,  for 
the  specific  execution  of  a  contract,  should  show  himself  ready  and  desi- 
rous to  perform  on  his  part.3  And  if  he  voluntary  abandons  a  written 
agreement,  with  the  assent  of  the  other  party,  though  the  abandonment 
be  by  parol,  he  cannot  afterwards  demand  a  specific  performance4  JSIor 
will  equity  interpose  if  the  agreement  has  not  been  insisted  on  for  many 
years.5 

The  question  whether  time  is  of  the  essence  of  the  contract,  may  arist 
as  well  in  relation  to  personal  as  to  real  property.  A  court  of  equity,  ir. 
holding  that  time  is  not  of  the  essence  of  a  contract,  proceeds  upon  the 
principle  that,  having  regard  to  the  nature  of  the  subject,  time  is  immate- 
rial to  the  value,  and  is  urged  only  by  way  of  pretense  or  evasion.  But 
that  principle  can  have  no  application  to  a  case  of  a  contract  for  the  de- 
livery of  the  scrip  of  government  stock,  where  from  the  nature  of  the 
subject  the  value  is  exposed  to  daily  variation,  and  a  contract  which 
was  disadvantageous  to  the  plaintiff  on  one  day,  might  be  highly  advan- 

1  Smedberg  v.  Moore,  26  Wend.  247.  3  King  v.  Hamilton,  4  Peters,  329. 

Benedict  v.  Lynch,  1  J.  Ch.  Pw.  375,  37G,  4  Baldwin   v.    Salter,    8    Paige,    473. 

879.     Watts  v.  Waddle,  6  Peters,  389.  1  Fonb.  Eq.  B.l,  cb.  6,  §  2,  note  E.    Go 

"  Brashier    v.    Gratz,    6  Wheat.    528.  man  v.  Salisbury,  2  Vern.  240.     Botslbn 

IV.      v.  Carrol!,   8  Cranch,  471.     King  v.  Burr,  2  J.  CL.  Pv.  416, 

v.  iiamilton,  4  Peters,  311,  329.  '  Powell  v.  Hankey,  2  P.  Wins.  82. 


\  i  -4 1  Rule  as  to  Time.  29o 

r.ra&.  xu  on  another.     In  such  cases,  time  may  be  of  the  essence  of  tho 
contract  ' 

In  coviracts  relative  to  real  estate,  it  is  not  always  an  indispensable 
requisite,  to  the  granting  of  relief  in  equity,  that  the  party  seeking  re- 
lief iias  mt  himself  performed  precisely  at  the  day.  If  he  has  not  been 
guilty  of  gross  neglect,  if  his  laches  can  be  reasonably  explained,  and  be 
shown  to  be  consistent  with  fairness  and  good  faith,  if  the  delay  can  bo 
compensated  to  the  other  party,  and  time  has  not  been  made  material  by 
the  contract  of  the  parties,  a  court  of  equity  will  still  afford  relief. 

Where,  in  a  contract  for  the  sale  of  lands,  the  purchase  money  is  to  be 
paid  or  secured,  and  the  conveyance  executed  on  a  particular  day,  and 
neither  party  performs,  or  offers  to  perform  on  that  day,  neither  can 
maintain  an  action  at  law  upon  the  contract.  In  such  case,  however, 
either  party  may  claim  specific  performance  in  equity,  on  making  the 
offer  incumbent  on  him  in  the  bill ;  and  the  failure  to  make  a  tender,  be- 
fore the  commencement  of  the  suit,  will  only  affect  the  question  of  costs.2 

These  principles  result  from  the  doctrine  that  time  is  not,  in  general, 
the  essence  of  the  contract,  and  may  in  a  court  of  equity,  under  certain 
circumstances,  be  disregarded.  A  court  of  equity  frequently  decrees 
specific  performance,  when  the  action  at  law  has  been  lost  by  the  default 
of  the  very  party  seeking  the  specific  performance,  if  it  be,  notwithstand- 
conscientious  that  the  agreement  should  be  performed;  as  in  cases 
where  the  terms  of  the  agreement  have  not  been  strictly  performed  ob 
part  of  the  party  seeking  specific  performance,  and  to  sustain  an  ac- 
tion  at  law  performance  must  be  averred  according  to  the  very  terms  of 
the  contract.  Nothing  but  specific  execution  of  the  contract,  so  far  as  it 
can  be  executed,  will  do  justice  in  such  a  case.3  And  again,  in  another 
case,4  Lord  Redesdale  8t»id  :  The  courts,  in  all  cases  of  contracts  for  es- 
tates in  land,  have  been  in  the  habit  of  relieving,  where  the  party,  from 
his  own  neglect,  had  suffered  a  lapse  of  time,  and  from  that,  or  other 
circumstances,  could  not  maintain  an  action  to  recover  damages  at  law. 
And  even  where  nothing  exists  to  prevent  his  suing  at  law,  so  many 
things  are  necessary  to  enable  him  to  recover  at  law,  that  the  formalities 
alone  render  it  very  inconvenient  and  hazardous  so  to  proceed  ;  nor  could, 
in  many  cases,  the  legal  remedy  be  adequate  to  the  demands  of  justice. 
Courts  of  equity  have,  therefore,  enforced  contracts  specifically,  where  no 
action  for  damages  could  be  maintained,  for  at  law  the  party  plaintiff 

1  Doloret  v.  Rothschild,  1  Sim.  &  Btn.  a  Davis  v.  Hone,  2  Schoales  &  I.eir 
690.  847. 

!  Stevenson  v.  Maxwell,  2  Couidt.  400,        *  Lennon  v.  Napper,  id.  OS-i. 
4]  J. 


294  Specific  Performance.  [Oh.  4. 

mu3t  have  strictly  performed  his  part,  and  the  inconvenience  of  insisting 
upon  that,  in  all  cases,  was  sufficient  to  require  the  interference  of  courts* 
of  equity.  They  dispense  "with  that,  which  would  make  compliance  with 
what  the  law  requires  oppressive  ;,  and  in  various  cases  of  such  contracts, 
they  are  in  the  constant  habit  of  relieving  the  man  who  has  acted  fairly, 
though  negligently.  Thus,  in  the  case  of  an  estate  sold  at  auction,  where 
there  is  a  condition  to  perfect  the  deposit,  if  the  purchase  be  not  com- 
pleted within  a  certain  time;  yet  the  court  is  in  the  constant  habit  of 
relieving  against  the  lapse  of  time.  And  so  in  the  case  of  mortgages,  and 
in  many  instances,  relief  is  given  against  mere  lapse  of  time,  when  lapse 
of  time  is  not  essential  to  the  substance  of  the  contract. 

There  are  some  cases  in  which  courts  will  not  decree  performance  ac- 
cording to  the  letter,  where  from  change  of  circumstances,  mistake  or 
misapprehension,  it  would  be  unconscientious  so  to  do.  In  such  a  case, 
the  court  may  so  modify  the  agreement  as  to  do  justice,  as  far  as  circum- 
stances will  permit ;  and  refuse  specific  execution,  unless  the  party  seek- 
ing it  will  comply  with  such  modification  as  justice  requires.1 

On  the  principle  that  time  is  not  of  the  essence  of  a  contract  for  the 
payment  of  money,  upon  a  contract  for  the  sale  of  real  estate,  it  has 
been  held  that  a  provision  in  a  contract  that,  in  case  the  vendee  makes 
default  in  any  of  his  payments,  he  shall  forfeit  all  previous  pay- 
ments, and  give  up  peaceable  possession,  affords  no  bar  to  a  decree  for 
a  specific  performance.2 

But  the  parties  may  make  time  the  essence  of  the  contract ;  and  they 
do  so  when  a  condition  precedent  is  required  to  be  performed  by  a  certain 
day,  before  the  vesting  of  an  estate.  In  such  case  the  vendor,  after  default 
of  payment  by  the  vendee,  may  convey  to  a  third  person,  and  no  decree  for  a 
specific  performance  will  be  sustained,  either  against  such  subsequent  pur 
chaser  or  his  vendor.3  So  where  the  agreement  was  that  the  vendee  should 
erect  a  house  on  the  premises  by  a  certain  day,  or  on  that  day  pay  a  certain 
sum  of  money  as  the  first  payment  of  the  purchase  money,  and  he  did  nei- 
ther ;  and  when  it  was  further  agreed,  that  if  the  vendee  failed  to  perforin 
any  of  his  covenants  at  the  time  or  times  limited,  all  his  rights  and  interest 
in  law  or  in  equity  in  the  premises  should  cease,  and  the  vendor  be  dis 
charged;  and  it  was  expressly  stipulated  that  no  deed  should  be  given 
until  the  vendee  performed  on  his  part;  it  was  held  that  the  parties  had 

1  The  Mechanics  Bank  v.  Lyiiu,  1  Pe-  3  Hatch  v.  Cohb,  4  J.  Ch  R.  559 
ters,  383.  Kempshall  v.  Stone,  5  id.  1&3. 

1  Edgerton  v.  Peckham,  11  Paige,  352. 


(jk,  41  Doubtful  Title  295 

made  time  essential,  and  a  bill  filed  by  the  vendee  for  a  specific  perform- 
ance, after  such  failure,  was  dismissed.1 

The  rule  applies  equally  to  both  parties,  when  time  has  been  made 
material  Neither  party  can  call  upon  a  court  of  equity  for  a  specific 
performance,  unless  he  has  shown  himself  ready,  desirous,  prompt  and 
eager.2  But  though  time  be  made  an  essential  ingredient  in  the  con- 
tract, a  strict  compliance  with  it  may  be  waived  by  either  party,  either 
by  words  or  acts.  The  party  seeking  performance  must  show  that  h„ 
had  used  due  diligence,  or  if  not,  that  his  negligence  arose  from  a  just 
cause,  or  has  been  acquiesced  in.3 

In  cases  where  time  is  made  essential,  it  is  not  necessary  for  the 
party  resisting  performance  to  show  that  he  has  sustained  any  particular 
injury  or  inconvenience  by  the  delay  of  the  plaintiff.  It  is  sufficient  if 
he  has  not  acquiesced  in  it,  but  considered  it  as  releasing  him.4 

Equity  never  compels  a  vendee  to  accept  the  conveyance  of  a  doubt- 
ful title.5  If  there  be  a  defect  in  the  paper  title  of  the  vendor,  it  seems 
that  if  his  possession  under  color  of  title  has  been  sufficient  to  establish 
a  good  adverse  possession,  it  is  sufficient  to  be  the  ground  of  a  decree.6 
If  he  is  able  to  give  a  good  title  at  the  time  of  the  decree,  it  has  already 
been  shown  that  that  will  suffice.7 

The  remedial  agency  of  the  court  is  often  invoked  by  the  vendor  in 
the  case  of  the  sale  of  real  estate  at  auction,  and  when  the  objection  is 
that  there  has  been  a  misdescription  of  the  property.  On  this  subject  it 
has  been  held  that  if  the  title  be  good,  and  the  description  of  it  be  substan- 
tially true,  though  in  a  slight  degree  defective  or  variant,  a  specific  per- 
formance of  the  contract  will  be  decreed/  Thus,  where  two  adjoining  lots 
of  land  were  sold  together,  in  one  parcel,  for  one  price,  and  on  one  of  the 
lots  were  buildings  which  projected  two  feet  on  the  other  lot,  it  was  held 
by  Chancellor  Kent  that  this  was  not  so  material  a  defect  in  the  subject, 
or  variation  from  the  terms  of  the  description  at  the  sale,  as  would  en 
title  the  purchaser  to  abandon  the  contract.  But  as  the  projection  was 
not  so  obviously  visible  as  to  conclude  the  purchaser,  if  he  had  exercise  I 
ordinary  vigilance,  and  as  the  vendor,  in  the  advertisement  of  sale,  de- 

■  TVells  v.  Smith,  7  Paige,  22.    Etlger-  6  Seymour  v.  Do  Lancey,  1  Ilopk.  436. 

ton,  v.  Peckham,  11  id.  364.     Benedict  Ilepbura  v.  Auld.  5  Cranch,  263. 

v.  Lynch,  1  J.  Oh.  B.  870.  6  Seymour  v.  De  Lancey,  1  Eopk.  436. 

1  Milward  v.  Thanet,  5  Yes.  720,  note.  7  Ante.     See  also  Hepburn  v.  Auld,  5 

Guest  v.  Homfray,  5  Yes.  818.  Cranch,  262. 

5  Benedict  v.  Lynch,  1  J.  Ch.  R.  379.  8  King  v.  Bardeau,  6  J.  Ck.  R.  38. 

«Id. 


290  Specific  Performance.  [Ch.  4. 

scribed  the  buildings  as  being  on  one  of  the  lots,  the  purchaser  was  en- 
titled to  compensation  for  any  diminution  of  value  arising  from   the 
projection  upon  the  other  lot,  to  be  deducted  from  the  price.'  °  Courts  of 
equity  look  to  the  substance  of  the  contract,  and  do  not  allow  small  mat- 
ters of  variance  or  deficiency  to  defeat  a  claim  in  other  respects  founded  in 
equity,  especially  when  a  full  compensation  can  be  made  for  the  deficiency.2 
On  the  other  hand,  if  there  be  a  substantial  defect,  either  in  the  title 
or  description  of  the  property,  unknown  to  the  vendee,  and  in  regard  to 
which  he  was  not  put  upon  inquiry,  the  court  will  not  compel  the  pur- 
chaser to  complete  the  purchase,  and  accept  compensation  for  defects, 
though  they  will  allow  him  at  his  election  to  compel  the  vendor  to  execute 
the  bargain,  as  far  as  in  his  power,  and  make  compensation  for  deficiency.^ 
While  courts  of  equity  will  not  permit  the  forms  of  law  to  be  instru- 
ments of  injustice,  and  will  not  allow  advantage  to  be  taken  of  a  failure 
to  perform  literally  the  terms  of  a  contract,  they  will,  nevertheless,  see 
that  the  purchaser  shall  not  be  compelled  to  take  what  he  never  intended 
to  buy ;  that  he  shall  not  be  required  to  complete  a  bargain,  unless  it  can 
be  carried  into  effect  substantially  as  made.4 

According  to  the  settled  practice  in  this  state,  which  is  different  from 
that  in  England  in  that  respect,  on  an  executory  contract  for  the  sale  of 
real  estate,  the  party  who  is  to  give  the  deed  has  the  same  drawn  at  his 
own  expense,  but  he  is  not  bound  to  prepare  it  until  the  party  who  is  to 
receive  it  is  in  a  situation  rightfully  to  demand  it.  And  after  such  de- 
mand, the  grantor  is  allowed  a  reasonable  time  for  drawing  and  execut- 
ing the  deed ;  and  he  is  then  to  hold  it  ready  for  delivery  when  called 
for,  and  is  in  no  default  until  a  second  demand  is  made.  The  purchaser, 
nevertheless,  may  prepare  the  deed  and  tender  it  for  execution,  and  then 
only  one  demand  is  necessary.*  Indeed,  the  necessity  for  a  second  de- 
mand of  a  deed,  in  any  case,  after  waiting  a  reasonable  time,  was  strongly 
questioned  by  Gridley,  J.,  in  a  recent  case,  if  it  was  not  directly  overruled.* 

1  King  v.  Bardeau,  6  J.  E.  38.  •  Hill  v.  Buckly,  17  Ves.  395     Pat<y, 

a  1  Fonb.  Eq.  B.  1,  ch.  6,  §  2,  note  E.  v.  Rogers,  1  Ves.  &  Beame,  351.  Waters 

Calcraft  v.  Roebuck,  1  Ves.  jr.  221.  Cal-  v.  Travis,  9  J.  R.  465. 
veriyv.  Williams,  1  Ves.  jr.  211.  Dyer  v.        *  Halsey   v.    Grant,    13   Ves.    70     77 

Hargrave,  10  Ves.  506.     Guest  v.  Horn-  Portraan  v.   Mill,   2  Rus.  570 ;  and  see 

fray,  5  id.  818   Halsey  v.  Grant,  13  id.  73.  cases  under  note  (2),  supra. 
Drew  v.  Hanson,  6  id.  675.     Hanbery  v.        6  Wells  v.  Smith,  2  Edw    Ch    R    81 

Litchfield,  2  Myl.  &  K.  629.     Hornblow  affirmed  by  chancellor,  7  Paige,'  73.  Ed 

v.  Shirley,  13  Ves.  81.     Osborne  v.  Bre-  ler  v.  Hubbard,  6  Cowen,  1.     Connelli 

mar,^l  Desau*.  586.     Wainwright  v.  Reid,  v.  Pierce,  7  Wend.  129. 
id'  573,  ?  Carpenter  v.  Brawn,  6  B*?b.  H7. 


(Jh.  4//         Of  Contracts  not  within  the  Statute.  297 

When  a  party  gives  notice  to  the  plaintiff  that  he  will  not  complete 
the  contract  on  his  part  and  abandons  the  agreement  and  refuses  to  per- 
form, such  refusal  dispenses  with  the  necessity  of  an  offer,  or  a  readiness 
to  perform  on  the  part  of  the  plaintiff,  as  it  shows  that  such  a  step  would 
be  an  idle  ceremony.1  Even  a  strictly  legal  tender  may  be  waived  by 
an  absolute  refusal  to  receive  the  money,  on  the  principle  that  no  man  is 
bound  to  perform  a  nugatory  act.  An  offer  and  readiness  to  perform,  on 
the  part  of  the  plaintiff,  is  enough  ;  especially  when  the  defendant  refuses 
to  convey  at  all.  Even  the  performance  of  a  condition  precedent  need  not 
be  averred,  where  performance  was  waived  or  prevented  by  the  party  to 
be  benefited  by  it.2 

After  what  has  been  said,  it  scarcely  need  be  added,  that  if  a  plaintiff 
has  failed  to  perform  his  part  of  an  agreement,  or  if  it  has  become  im- 
possible to  perform  it,  he  cannot  insist  on  a  specific  performance.3 

But  if  the  plaintiff  has  performed  so  much  of  his  part  of  the  agree- 
ment that  lie  cannot  be  put  in  statu  quo,  and  is  in  no  default  for  not  per- 
forming the  residue,  or  is  prevented  from  completing  it,  by  the  default  of 
the  defendant,  he  is  entitled  to  a  specific  performance.4 

In  discussing  the  doctrine  with  respect  to  enforcing  specifically  con- 
tracts in  relation  to  real  estate,  which  are  within  the  statute  of  frauds,  we 
lnve  necessarily  anticipated  much  that  has  reference  to  contracts  not 
w  ithin  the  statute.  The  authorities  which  are  used  to  illustrate  the  prin- 
ciples  which  govern  in  the  former  case,  often  contain  the  doctrine  which 
governs  in  the  latter.  If  an  agreement  for  the  sale  of  real  estate  be  made 
1)  j  proper  parties,  able  and  willing  to  contract,  and  be  in  the  forms  pre- 
scribed bylaw,  and  be  certain  and  defined,  equal,  fair  and  just  in  all  its 
purts,  it  will  in  general  be  decreed  to  be  specifically  executed.5  The  cir- 
cumstances under  which  such  agreements  will  be  enforced,  and  the  grounds 
of  objection  which  may  be  taken,  growing  out  of  a  want  of  mutuality,  in- 
adequacy of  consideration,  mistake,  hardship,  surprise  and  the  like. 
have  been  already  considered,  and  need  not  be  repeated.  It  is  scarcely 
necessary  to  add,  to  what  has  already  been  said,  that  if  the  contract  could 
oe  enforced  between  the  original  parties,  it  can  be  enforced  by  and  against 

1  North  v.  Pepper,  21  Wend.  633.  Car-  6  Lord  Walpole  v.  Lord  Oxford,  3  Ves. 
penter  v.  Brown,  G  Barb.  151.  420.     Buxton  v.  Lister,  3  Atk.  385.     I'n- 

a  Bellinger  v.  Kitte,  G  Barb.  281.  derwood  v.  rlitchcox,  1  Ves.  279.     Sey- 

s  1  Mad.  Oh.  Pr.  331.  mour  v.  Delanoy,  3  Co  wen,  445.     S.  C. 

4  Id.     1    Foiib.   Eq.    B.  1,   cli.  6,  §8,    6  J.  Ch.  R.  222.     St  John  v.  Benedict, 

id.  111. 


298  Specific  Performance.  [Ch.  » 

those  who  stand  in  legal  privity  with  them,  as  the  heir,  devisee  or  pur- 
chaser, with  notice. 

A  conveyance  for  a  valuable  consideration  made  bona  fide  to  a  third 
person,  without  notice  of  the  agreement,  and  before  it  has  been  carried 
into  effect  by  a  deed,  will  pass  the  legal  title  to  such  grantee.1  In  such 
case  the  remedy  is  at  law,  and  not  in  equity,  because  the  party  is  dis- 
abled after  such  conveyance  to  execute  the  agreement  in  specie.'2  But 
should  the  vendor,  while  the  contract  remains  executory,  and  while  he  is 
under  an  equitable  obligation  to  enforce  it,  convey  the  premises  to  a 
third  person,  with  notice  of  the  contract  and  of  his  liability,  the  pur- 
chaser could  enforce  the  contract  by  an  action  against  the  vendor  and  h'13 
vendee.  The  last  purchaser  in  such  case  takes  the  estate,  incumbered 
with  the  equitable  right  of  the  original  contractor  to  a  completion  of  his 
bargain.3  The  chancellor  said,  in  Champion  v.  Brown,  (supra,)  that  if 
A.  enters  into  a  contract  to  sell  land  to  B.,  and  afterwards  refuses  to 
perform  his  contract,  and  sells  the  land  to  C.  for  a  valuable  considera- 
tion, B.  may,  by  bill,  compel  the  purchaser  to  convey  to  him,  provided  lie 
be  chargeable  with  notice  at  the  time  of  his  purchase  of  B.'s  equitable 
title  under  the  agreement.  (Lord  Macclesfield  in  Atcherly  v.  Vernon,  10 
Mod.  518.  Winged  v.  Lofebury,  2  Eq.  Cases  Ab.  32,  pi.  43.  Taylor 
V.  Stibbert,  2  Ves.  jun.  437.  Daniels  v.  Davison,  16  Ves.  249 ;  17  id. 
433,  S.  C.)  The  rule  that  affects  the  purchaser  is  just  as  plain  as  that 
which  would  entitle  the  vendee  to  a  specific  performance  against  the 
vendor.  If  he  be  a  purchaser  with  notice,  he  is  liable  to  the  same 
equity,  stands  in  his  place,  and  is  bound  to  do  that  which  the  person  he 
represents  should  be  bound  by  the  decree.  The  purchaser  from  the 
vendor  takes  the  estate  subject  to  the  charge,  and  so  does  a  purchaser 
from  the  vendee,  and  he  is  equally  responsible  in  respect  to  the  estate. 
The  vendor  cannot  make  him  personally  liable  for  the  purchase  money, 
but  the  estate  is  liable ;  and  if  he  be  a  purchaser  with  notice,  it  is  the 
same  thing,  whether  the  estate  had  or  had  not  been  actually  conveyed 
by  the  vendor. 

The  general  principle  on  which  this  doctrine  rests  is,  that  equity  looks 
upon  things  agreed  to  be  done  as  actually  performed,  as  money  covenanted 
to  be  laid  out  in  land  to  be  in  fact  real  estate,  which  shall  descend  to  the 
neir  '  It  considers  land  directed  to  be  sold  and  converted  into  money 
as  money,  and  money  directed  to  be  employed  in  the  purchase  of  land 

"Waters  v.  Travis,  9  J.  R.  463.  Boyd  v.  Vanderkemp  et  al.  1  Barb.  Cl*> 

s  Hatch  v.  Cobb,  4  J.  CI).  R.  559.  R.  27:3. 

•  Champion  v.  Brown,  6  id.  402,  403.        *  1  Fonb.  Eq.  B.  1,  cb.  6,  §  9. 


rCh.  4. J  Money  treated  as  Land  299 

as  land.1  The  rule  must  be  understood  -with  this  qualification,  thai 
things  are  not  considered  in  that  light  in  favor  of  every  body,  but  only 
for  those  who  have  a  right  to  pray  it  may  be  done  ;2  and  that  it  does  not 
apply,  if  the  special  purpose  for  which  the  money  is  directed  to  be  laid 
out  in  land,  or  the  land  to  be  converted  into  money,  fail.3  It  also  con- 
siders the  vendor,  from  the  time  the  contract  for  the  sale  of  real  estate  is 
consummated,  as  the  trustee  with  respect  to  the  land  for  the  vendee,  and 
the  vendee,  as  to  the  purchase  money,  the  trustee  for  the  vendor,  and 
that  the  latter  has  a  lien  on  the  land  for  the  same.4 

When  money  is  agreed  by  articles  to  be  laid  out  in  land,  the  party 
who  would  have  the  sole  interest  in  the  land  when  bought  may  elect  to 
have  the  money  paid  to  him,  and  that  it  shall  not  be  laid  out  in  land.5 
And  the  rule  is  the  same,  in  case  of  a  bequest  of  money  to  be  laid  out  in 
the  purchase  of  land.6 

It  is  observable,  that  when  money  is  agreed  and  directed  to  be  laid 
out  in  land,  to  be  settled  to  particular  uses,  it  will,  while  uninvested,  be 
considered  as  land  in  regard  to  succession,  and  accordingly  go  to  the  heir 
of  the  person  entitled  to  the  inheritance  in  the  land  to  be  purchased,  in 
the  same  manner  as  the  land,  if  purchased,  would  have  done  ;7  until 
some  person  competent  to  dispose  of  the  lands,  under  the  limitation  of 
the  uses,  shall  clearly  manifest  and  decide  his  intention  to  terminate  the 
trust,  and  to  dispose  of,  or  have  the  universal  fund  again  considered  as 
mere  personal  property.8 

And  where  a  sum  of  money  is  given  by  the  will  of  a  testator,  to  be 
laid  out  in  the  purchase  of  lands,  or  of  lands  in  a  particular  county,  ani 
after  they  are  bought,  to  be  settled  upon  such  and  such  persons,  if  a  bill 
is  brought  in  equity  the  constant  course  of  the  court  is  to  direct  a  pur- 
chase, and  the  produce  of  the  money  to  go  as  the  lund  itself,  till  pur- 
chased.9 So,  if  there  be  a  direction  by  will  to  purchase  a  particular  estate, 
which  is  swallowed  up  by  an  inundation  ;  or,  suppose  the  will  was  to 
purchase  an  estate  in  such  a  county,  and  it  cannot  be  procured,  the 
money  will  not  go  to  the  executors,  but  in  such  manner  as  the  rents  and 
profits,  when  the  land  is  purchased.10 

1  Craig  v.  Leslie,  3  Wheat.  563,  577.  6  Benson  v.  Benson,  1  P.  ¥ms.  130. 

a  Crabtree  v.  Bramble,  3  Atk.  GSO,  and        6  Seeley  v.  Jago,  id.  389. 
n.  1.     Guidot  v.  Guidot,  id.  254,  and  n.  1.        7  Att'y  Gen.  v.  Milner,  3  Atk.  114. 

3  1  Foab.  Eq.  B.  1,  ch.  6,  §  9,  note  v.        8  Earlom  v.  Saunders,  Arab.  242.  Brad 

Ante,  47,  48.  ish  v.  Gee,  id.  229. 

*  Champion  t.  Brown,  6  J.  Ch.  R.  403.        '  Earl  of  Coventry  v.  Coventry,  2  Atk 

Green  v.  Smith,  1  Atk.  572.     Makreth  v.  209. 
Syminons,   15    Ves.    329.      Swartout    v.         Id. 
Burr,  1  Barb.  S.  C.  R.  499. 


300  Specific  Performance  [Ch.  4  \ 

The  foregoing  is  sufficient  to  illustrate  the  general  principles  by  "which 

courts  of  equity  are  governed  in  decreeing  the  specific  execution  of 

agreements.     The  authorities  to  show  that  money  agreed  or  directed  to 

be  laid  out  in  land  is  to  be  considered  as  land,   are  very  numerous,  and 

he  whole  subject  is  very  thoroughly  discussed  in  many  of  the  cases.1 


SECTION  II. 

OF  THE  RE-EXECUTION  AND  CORRECTION  OF  AGREEMENTS. 

"We  will  proceed  now  to  the  consideration  of  the  doctrine  of  re-execu- 
tion and  correction  of  agreements,  and  of  other  matters  not  already  dis- 
cussed. The  two  first  precede  a  decree  for  a  specific  performance,  and  the 
last  results  from  an  inability  to  perform  the  agreement,  either  in  whole 
or  in  part. 

The  jurisdiction  for  re-execution  and  other  similar  relief  arises,  not 
only  on  a  destruction  or  concealment  by  the  defendant,  but  also  on  an 
accidental  destruction  or  loss,  when  the  missing  instrument  is  such,  that 
its  non-production  would  perpetuate  a  defect  of  title,  or  would  preclude 
the  plaintiff  from  recovering  at  law.2  This  subject  was  considered,  to  some 
extent,  under  the  head  of  accident  and  mistake.  And  it  has  already 
been  incidentally  alluded  to  in  this  chapter.  And  it  has  been  shown  that 
Chancellor  Kent,  on  several  occasions,  entertained  bills  to  reform  an  agree- 
ment, and  to  carry  it  into  execution  in  its  corrected  state.3  Similar  doc- 
trine has  been  held  elsewhere.  Thus,  in  North  Carolina,  it  has  been 
held  that  equity  relieves  against  mistakes,  as  well  as  against  frauds,  in  a 
deed  or  contract  in  writing ;  and  parol  evidence  is  admissible  to  prove 
the  mistake,  though  it  is  denied  in  the  answer  ;  and  this,  when  the  plain- 
tiff seeks  relief,  affirmatively,  on  the  ground  of  mistake.  As  when  the 
owner  of  two  adjoining  tracts  of  land  having  sold  one  of  them,  in  de- 
scribing the  metes  and  bounds,  in  a  deed  executed  to  the  purchaser,  by 
mistake  included  both  tracts :  the  proof  of  the  mistake  being  perfectly 

:  1  Fonb.  Eq.  B.  1,  ch.  6,  §  0,  note  t.  2  Adams'  Eq.  166. 

Oraig  v.  Leslie,  3  Wheat.  577,  opinion  of  3  Gillespie  v.  Moon,   2  J.   Ch.  R.  585, 

"Washington,   J.,    who    has    elaborately  Keisselbrack  v.  Livingston,  4  id.   H&. 

treated  the  whole  subject.  See  ante,  p.  280. 


Ch.  4. J  Vendor's  Lien.  301 

satisfactory,  the  vendee  was  decreed  to  convey  to  the  vendor  the  tract  of 
land  not  intended  to  be  conveyed.1 

"Where  the  vendee  contracted  for  the  purchase  of  land  and  took  pos- 
session, but  neglected  to  pay  the  purchase  money  for  nine  months  after 
it  fell  due,  during  all  which  time  the  vendor  held  the  bond  for  the  pur- 
chase money,  and  did  not  offer  to  surrender  it,  but  recognized  the  con- 
tract as  still  subsisting,  it  was  held,  that  having  allowed  the  contract  to 
subsist  after  the  default,  the  vendor  could  not  put  an  end  to  it,  without 
a  previous  formal  and  reasonable  notice  to  the  purchaser,  to  come  for- 
ward and  fulfill  it,  or  he  would  not  hold  himself  bound.  And  it  was  held, 
that  upon  such  purchaser  paying  the  money,  he  could  demand  a  specific 
performance  from  the  vendor,  or  call  for  the  legal  title  from  a  person  who 
had  purchased  with  full  notice  of  the  contract.2 

It  often  happens  that  one  or  the  other  of  the  parties  to  a  contract,  for 
the  sale  of  land,  has  assigned  his  right  and  title  to  a  third  person.  In 
such  case,  if  the  assignee  would  entitle  himself  to  a  specific  performance 
thereof,  he  must  do  every  thing  which  his  assignor  would  have  been 
bound  to  do,  if  the  contract  had  not  been  assigned ;  unless  the  person 
against  whom  the  specific  performance  is  claimed  has  relinquished  his 
rights  in  favor  of  the  assignee.3 

A  vendor  of  real  estate  has  a  lien  upon  the  same  for  the  unpaid  pur- 
chase money.  And  when  a  decree  is  made  for  a  specific  performance  of 
a  contract  of  sale,  the  court  will,  if  the  vendor  asks  for  it,  direct  a  pro- 
vision to  be  inserted  in  the  decree,  that  if  the  vendee  refuses  to  accept 
the  conveyance  and  pay  the  purchase  money,  the  premises  may  be  sold 
by  a  master  for  the  purpose  of  raising  such  purchase  money  ;  and  that  if 
the  proceeds  of  the  sale  are  insufficient  to  pay  the  amount  due,  the  ven- 
dee shall  pay  the  deficiency.  Or  the  court  may  decree  that  if  the  ven- 
dee does  not  pay  the  purchase  money,  within  such  time  as  shall  be 
directed  by  the  court,  he  shall  be  foreclosed,  or  barred  of  his  right  to  a 
specific  performance  of  the  contract.4 

It  has  been  shown  that  when  the  vendor  has  disabled  himself  to  per 
form  in  whole  or  in  part,  the  bill  may,  in  some  cases,  be  retained  foi 
compensation.  But  when  a  vendor,  under  a  contract  to  sell  to  the  plain 
tiff,  conveyed  to  a  third  person  with  notice  of  the  plaintiff's  rights,  a  bill 
filed  against  the  vendor  and  his  vendee  with  notice  in  the  alternative,  Lr 
a  specific  performance  or  compensation,  can  be  sustained  only  in  the 

1  Newson  v.  Bufferlow,  1  Dev.  Eq.  379.        3  Jones  v.  Lyndes,  7  Taigc,  301. 
Wesley  v.  Thomas,  6  liar.  &  John.  24.  *  Clark  v.  Hall.  id.  383. 

5  Falls  v.  Carpenter,  1  Dev.  &  Batt.  237. 


302  Specific  Performance.  [Ch,  4. 

former  character.  The  subsequent  purchaser,  having  admitted  that  ho 
purchased  with  notice  of  the  plaintiff's  contract,  is  liable  to  a  decree  for 
a  specific  performance.  The  plaintiff  is  thus  entitled  to  the  land,  with, 
the  improvements,  if  any,  -which  the  purchaser  put  thereon,  upon  the 
payment  of  the  original  purchase  money  and  interest.1 

The  doctrine  -with  respect  to  compensation,   on  bills  for  specific  per- 
formance, will  be  more  fully  treated  in  a  subsequent  section.2 


SECTION  III. 

OF  RESCISSION,  CANCELLATION,  AND  THE  DELIVERING  UP  OF  AGREEMENTS. 

The  rescission,  cancellation  or  delivering  up  of  agreements,  securities  or 
deeds,  is  the  converse  of  a  specific  performance.  The  equity  to  relief,  in 
each  case,  originates  in  the  fraud  which,  but  for  the  interposition  of  the 
court,  would  be  perpetrated  upon  the  complaining  party.  The  relief,  how- 
ever, in  each  case,  cannot  be  demanded,  as  of  strict  right,  but  is  granted 
or  refused  by  courts  of  equity  upon  their  own  notions  of  what  is  reason- 
able and  just,  under  all  the  surrounding  circumstances.3  And  though, 
in  strictness,  a  specific  performance  and  a  cancellation  of  an  agreement 
be  the  opposites  of  each  other,  yet  a  court  of  equity  is  not  bound  to  de- 
cree a  specific  performance  in  every  case,  where  it  will  not  set  aside  the 
contract ;  nor  to  set  aside  every  contract  that  it  will  not  specifically  per- 
form.4 And  it  is  generally  agreed  that  the  relief,  by  delivering  up  a 
contract,  requires  a  stronger  case,  than  to  resist  a  specific  performance.5 

Nor  will  relief  be  granted  universally,  even  though  the  defendant  be 
:n  the  wrong.6  The  plaintiff  must  also  show  a  title  to  relief,  beyond  the 
uere  technical  breach  of  duty,  which  would  confer  a  right  of  action  at 
law.  The  court  will,  as  has  been  seen  already,  decree  a  specific  perform- 
ance on  the  application  of  a  vendee,  either  with  or  without  en-  pensa- 
tion,  when  it  would  deny  the  like  relief  on  the  application  of  the  vendor. 
Arid  the  court  will,  in  rike  manner,  order  an  agreement  to  be  canceled, 
or  set  <*side  on  the  application  of  one  party,  and  deny  similar  relief  at 

1  Boyd  v.  Vanderkemp,  1  Barb.  Ch.  R.  4  Id.  M'Leod  v.  Drummond,  17  Vec, 
273.  167. 

2  See  post,  Sec.  4  of  this  Chapter.  6  Savage  v.  Brocksopp,  18  Ves.  337. 

2  Mortlock  v.  Brdler,  10  Ves.  292.  6  Hamilton  v.  dimming.*,  1  J.  Ch.  R 

Foub.  Eq.  B.  1,  ch.  3,  §  9,  note  i.  517.     - 


Cli.  4.]  Rescission.     Cancellation.  303 

the  instance  of  another.1  The  discretion  which  courts  of  equity  exer- 
cise,, in  matters  of  this  kind,  is  not  a  mere  arbitrary  discretion,  but  is 
a  sound  and  reasonable  discretion,  and  regulated  upon  grounds  that  make 
it  judicial.2  Tho  court  often  considers  -whether  the  relief  prayed  would 
be  attended  with  hardship  or  not ;  or  -whether  a  superior  or  inferior 
equity  arises  on  the  part  of  the  person  who  comes  for  a  specific  perform- 
ance.3 And  as  it  is  a  maxim  of  the  court,  that  he  who  seeks  equity  must 
himself  do  cquit}T,  the  court,  in  all  cases,  when  the  justice  of  the  case 
requires  it,  imposes  such  terms  upon  the  party,  to  -whom  relief  is  granted, 
as  will  fulfill  the  requirement  of  that  maxim.  A  convenient  illustration 
of  this  principle  is  found  in  the  practice  of  the  court,  -when  not  controlled 
by  the  statute,  of  refusing  to  entertain  a  bill,  either  for  discovery  or  relief, 
by  the  borrower  or  other  person  standing  in  legal  privity  with  him,  on 
the  ground  of  usury,  without  an  offer  to  pay  the  sum  actually  loaned, 
with  lawful  interest.4 

Although,  in  cases  Avhere  an  instrument  is  absolutely  void,  either  by 
statute  or  by  the  principles  of  the  common  law,  no  action  can  be  main- 
tained thereon,  and  the  other  party  has  a  perfect  defense  in  a  court  of 
law,  ^  et  it  has  long  been  held  that  courts  of  equity  will  interpose,  either 
by  injunction,  or  by  its  plenary  powers  of  setting  aside,  or  canceling  the 
agreement.  The  principle  upon  which  relief  seems  to  be  granted  in  such 
cases  is,  upon  the  ground  that  equity  will  often  interpose  and  prevent  an 
injury  which  is  impending  over  the  complaining  party.  This  is  the  doc- 
trine on  which  bills,  Quia  Timet,  are  sustained;  and  it  is  thus  expounded 
by  an  able  writer  upon  equity  jurisprudence  :s  "When  a  person  is  appre- 
hensive of  being  subjected  to  a  future  inconvenience,  probable  or  even 
possible  to  happen,  or  be  occasioned  by  the  neglect,  inadvertence  or  cul- 
p ability  of  another  ;  or  when  any  property  is  bequeathed  to  one,  after 
the  death  of  another  in  existence,  and  which  the  former  is  desirous  of 
having  secured  safely  for  his  use,  against  the  effects  of  any  accident 
which  may  happen  to  it  previous  to  the  accruing  of  his  possession  ;  in 
either  of  these  cases  a  bill  of  the  above  description  may  be  exhibited, 
which,  in  the  one  instance,  will  quiet  the  party's  apprehension  of  a  future 
inconvenience,  by  removing  the  causes  which  may  lead  to  it ;  and,  in  tho 

1  Cook  v.  Clayworth,  IS  Ves.  12.  Tupper  v.  Powell,  id.  439.    Livingston 

tnourv.  Delancy,  3  Cowen,   505,  v.  Harris,  3  Paige,  528.     S.  C.  ou  appeal, 

per  Savage,  Ch.  J.     White  v.  Damon,  7  11  Wend.  329.     Post  v.  Dart,  8  Paige, 

85.     Buckle  v.  Mitchcl,  18  id.  111.  639.     S.  0.  7  Hill,  391,  on  appeal.     Fan- 

3  Goring  v.  Nash,  '■',  Atk.  188.  Finch  ning  v.  Dunham,  5  J.  Ch.  Pv.  142  ct  seq. 
v.  Earl  of  Winchelsea,  1  P.  Wins.  277.  5  1  Mad.  Ch.  Pr.  178.    See  post,  Ceap. 

4  Rogers  v.  Puthbnn,  1  J.  Ch.  ft  3G7.  V,  Sec.  3,  Of  Bilk  Quia  Timet. 


301  Specific  Perfohmance.  [Ch.  4. 

other,  -will  secure  for  the  use  of  the  party  the  property,  by  compelling 
the  person  in  the  present  possession  of  it  to  guaranty  the  same  by 
proper  security,  against  any  subsequent  disposition  or  willful  destruction." 
It  is  under  the  former  branch  of  the  definition  that  the  remedies  Ave  are 
considering  are  comprehended.  The  jurisdiction  of  a  court  of  equity  to 
set  aside  deeds  and  other  legal  instruments,  which  are  a  cloud  upon  the 
title  to  real  estate,  and  to  order  them  to  be  delivered  up  and  canceled, 
appears  to  be  now  fully  established.1  It  will  do  so,  though  the  instru- 
ments be  void  at  law  as  well  as  in  equity.  Much  more,  therefore,  is  the 
party  entitled  to  relief  in  this  court,  if  he  have  a  defense  which  is  of  a 
purely  equitable  nature,  and  not  available  at  law.  So  a  person,  who  has 
a  perfect  remedy  at  law,  to  recover  for  the  breach  of  an  agreement  con- 
nected with  a  note,  if  he  cannot  avail  himself  of  it  as  a  defense  to  an  ac- 
tion on  the  note,,  can  come  into  a  court  of  equity  to  have  the  note  can- 
celed, and  to  recover  the  balance,  if  any,  which  may  be  due  to  him.2 

The  cases  in  which  equity  relieves,  by  setting  aside  or  canceling  deeds, 
bonds,  or  other  securities,  are  when  there  has  been  actual  fraud  in  the 
party  defendant,  in  obtaining  the  deed  or  security ;  or  constructive  fraud 
against  public  policy,  and  the  plaintiff  is  not  a  partaker  in  the  fraud.  It 
will  also  interpose  in  some  cases  of  constructive  fraud  when  public  policy 
requires  the  agreement  should  not  stand,  though  both  parties  have  been 
alike  guilty.3  And  there  are  other  cases  of  constructive  fraud  where  it 
will  relieve,  if  the  parties  do  not  stand  in  jiari  delicto.  Many  of  thefie 
cases  have  already  been  considered  under  the  head  of  fraud,  and  need 
not  be  repeated.4 

But  the  court  in  general  will  leave  the  parties  to  the  consequences  of 
their  own  act,  and  to  the  remedies  afforded  at  law,  if  they  stand  in  pari 
delicto.5  Thus,  after  a  verdict  on  a  bond  at  law,  equity  will  not  relieve 
against  it,  or  the  judgment  thereon,  upon  the  ground  that  the  considera- 
tion of  it  was  an  agreement  by  the  defendant  to  cohabit  with  the  plain- 
tiff as  his  wife,  and  that  she  had  violated  that  agreement.6  Such  agree- 
ment is  void  at  common  law,  and  cannot  be  enforced  either  at  law  or 
equity,  nor  will  the  court  aid  the  obligor  in  getting  relieved  from  it. 

1  Petit   v.    Shepherd,    5    Paige,    501.  3  Lord  St.  John  v.  Lady  St.  John,  11 

Ward  v.  Ward,  2  Hay,  R.  226.     Leigh  v.  Yes.  535. 

Everhart's  Executors,  4  Munroe's  E.  380.  4  Loomis  v.  Cline,  4  Barh.  453. 

Hamilton  v.  Cummins,  1  J.  Ch.  K.  517.  6  Bolt  v.  Rogers,  3  Paige,  154. 

Apthorp   v.    Comstock,    2    Paige,    482.  6  Franco  v.  Bolton,  3  Ves.  308.     Grav 

Grover  v.  Hugell,  3  Russ.  Ch.  R.  432.  v.  Mathias,  5  id.  280. 

a  Reed  v.  The  Bank  of  Newhurgh,   1 
Paige,  215. 


Ch.  4.]  Delivering  up  Deeds,  &c.  305 

When  a  bill  is  filed  for  the  delivering  up  or  cancellation  of  a  deed,  or 
other  instrument,  on  account  of  its  being  void,  either  by  fraud,  or  as  a 
forgery,  it  was  usual  if  the  fraud  be  denied  to  award  an  issue,  and  direct 
it  to  be  tried  by  a  jury.  But  it  was  nevertheless  held,  that  it  was  dis- 
cretionary with  the  court  whether  an  issue  should  be  directed  or  not.1 
And  it  was  well  settled  that  the  court  might,  if  it  pleased,  retain  the 
cause  and  decide  the  matter  of  fact  itself,  without  the  intervention  of  a 
jury,  except  on  bills  for  a  divorce,  or  an  issue  devisavit  vel  non.  There 
are  numerous  cases,  says  Chancellor  Kent,  in  which  a  court  of  equity  has 
set  aside  conveyances  from  persons  of  weak  or  diseased  intellects,  with- 
out referring  the  case  to  a  jury  ;  and  all  such  cases  rest  upon  the  exer- 
cise of  the  undoubted  jurisdiction  and  discretion  of  the  court.2  On  a  bill 
to  deliver  up  a  bill  of  exchange,  improperly  issued,  where  the  testimony 
was  clear,  Lord  Loughborough  refused  to  award  an  issue,  and  determined 
the  question  of  fact  himself.3 

Bat  the  present  practice  in  New- York,  under  the  constitution  of  1846, 
is  to  try  the  issue  in  the  same  manner  as  issues  in  actions  at  law  are 
tried.4  A  feigned  issue  no  longer  exht3;  but  the  actual  issue  raised  by 
the  parties  must  be  tried  by  jury,  unless  the  parties  elect  to  have  it  tried 
by  the  court  or  referee.5 

It  was,  however,  before  the  adoption  of  the  constitution,  the  most  usual 
practice  of  the  court  to  award  an  issue  to  try  the  validity  of  deeds,  notes 
or  other  instruments  alleged  to  have  been  forged,  or  obtained  by  fraud, 
or  by  undue  influence,  and  the  motion  for  a  new  trial,  or  for  a  judgment 
founded  on  the  verdict,  was  properly  addressed  to  the  court  awarding 
the  issue.6  The  courts  in  this  state  in  former  years,  before  the  constitu- 
tion of  1846,  awarded  an  issue  to  try  the  allegation  of  usury  in  a  bond 
and  warrant  of  attorney,  on  which  judgment  had  been  obtained,  the  fact 
of  such  usury  being  denied.7  In  like  manner,  they  ordered  an  issue  to 
try  whether  the  bond  and  warrant  of  attorney,  on  which  judgment  was 
entered,  was  forced.3  But  the  court  was  not  in  the  habit  of  awarding  an 
issue  where  an  application  was  made  to  its  equity  powers  for  relief  against 
a  judgment,  and  there  was  no  conflicting  evidence  or  question  of  credibility 

1  Jcrvis  v.  White,  7  Ves.  413.  «  Lansing  v.  Russ^I,  3  Barb.  Ch.  R. 

1  Smith  v.  Carl,  5  J.  Ch.  R.  120.  New-  325.     S.  C.  13  Barb.  610. 

raaa  v.  Milner,  2  Ves.  jr.  483.  T  Starr  v.  Schuyler,  2  J.  R.  139.     War- 

1  Id.  dell  v.  Eden,    2  J.   C.   258,    Gilbert  v. 

4  Constitution  of  1846,  art.  6,  §  10.  Eden,  2  id.  280. 

1  Code  of  Procedure,  %%  2G6,  270,  272.  *  King  v.  Shaw,  3  J.  R.  142. 
Kq.  Jr*R.                                   39 


306  Specific  Performance.  [Ch.  I. 

involved.1  Nor  when  a  motion  was  made  to  set  aside  a  release  granted 
m  a  cause  pendente  lite? 

As  the  ground  of  relief  by  cancellation,  or  delivering  up  of  deeds 
and  other  agreements,  is  the  danger  that  the  rights  of  the  complaining 
party  will  be  put  at  hazard,  or  a  cloud  be  cast  over  his  title,  if  the  instru- 
ment be  suffered  to  remain,  it  was  said  by  Chancellor  Walworth,  thai 
if  the  objection  appear  upon  the  face  of  the  writing  or  proceedings, 
through  which  the  adverse  party  can  alone  claim  any  right  to  the  com- 
plainant's land,  it  is  not  in  law  such  a  cloud  upon  the  complainant's  title 
as  can  authorize  a  court  of  equity  to  set  aside  or  stay  such  proceedings.3 
Equity,  in  general,  interferes  only  where  the  claim  of  the  adverse  party  is 
valid  upon  the  face  of  the  instrument,  or  the  proceedings  sought  to  be  set 
aside ;  as  where  the  defendant  has  procured  and  put  upon  record  a  deed, 
obtained  from  the  complainant  by  fraud,  or  upon  a  usurious  consideration, 
which  requires  the  establishment  of  extrinsic  facts  to  show  the  supposed 
conveyance  to  be  inoperative  and  void.  In  such  case,  a  use  may,  prima 
facie,  be  made  of  the  instrument  by  the  defendant  prejudicial  to  the  com- 
plainant. It  thus  creates  a  cloud  upon  his  title  which  equity  will  re- 
move.4 On  the  same  principle,  a  bill  will  not  be  entertained  to  deliver 
up  a  bill  of  exchange  or  bond,  after  an  action  has  been  brought  and  a 
recovery  of  judgment  thereon  been  had  at  law,  and  the  amount  received.5 
By  such  recovery  the  instrument  is  merged  in  the  judgment,  and  there 
no  longer  exists  any  well  founded  danger  that  it  will  be  again  put  in  cir- 
culation, or  that  the  party  will  be  subjected  to  any  expense  or  trouble  in 
relation  to  the  same.  The  record  will  show  that  the  instrument  is  no 
longer  an  available  security.  The  case  stands  upon  a  different  footing 
from  forged  securities,  or  those  which  are  void  for  fraud  and  the  like, 
where  the  invalidity  of  the  instrument  depends  upon  the  proof  of  collateral 
facts  resting  in  the  memory  of  witnesses. 

Chancellor  Kent,  on  the  contrary,  at  an  early  day,  expressed  the  opinion 
that  the  weight  of  authority,  and  the  reason  of  the  thing,  were  equally  in 
favor  of  the  jurisdiction  of  the  court,  whether  the  instrument  be  or  be  not 
void  at  law,  or  whether  it  be  void  from  matter  appearing  on  its  face,  or 
from  proof  taken  in  the  cause.  And  he  thought  the  distinctions  in  this 
respect  were  not  well  founded.5     It  is  every  day's  practice,  he  observed, 

1  M'Instry  v.  TburstoD,  12  Wend.  222.    Ves.  286.     Bromley  v.  Holland,  7  id.  16, 

2  Ferris  v.  Crawford,  2  Denio,  595.  20,  22. 

3  Van  Doren  v.  Mayor  &c.  of  N.  Y.,  9        4  See  foregoing  cases. 

Paige,  388.     Simpson  v.  Lord  Ilowden,        6  Threlfall  v.  Lunt,  7  Sim.  627. 
I  Mjl.  &  Craig,  97.     Gray  v.  Mathias,  5        6  Hamilton  v.  Oummings,  1  J.  Oh.  li 

'522. 


Ch.  4.]  Delivering  up  Deeds,  &,c.  307 

to  order  instruments  to  be  delivered  up,  of  which  a  bad  use  might  be  at- 
tempted to  be  made  at  law,  although  they  could  not  even  there  entitle  the 
holders  to  recover.  It  is  indeed  not  very  apparent,  why  a  doubt  should 
have  been  started  in  some  of  the  modern  cases  as  to  the  general  jurisdic- 
tion of  the  court,  when  we  consider  the  uniform  tenure  and  language  of 
the  more  ancient  decisions,  and  which  do  not  appear  to  have  turned  upon 
the  distinction,  whether  the  instruments  were  or  were  not  void  at  law.  In 
"Whittingham  v.  Thornburgh,  (2  Vern.  206,)  and  Goddart  v.  Garrett,  (id. 
269,)  and  De  Costa  v.  Scandret,  (2  P.  Wms.  170,)  policies  of  insurance, 
procured  by  fraud,  were  ordered  to  be  delivered  up  and  canceled,  though 
the  fraud  was  equally  a  defense  at  law.  And  in  another  case,  (Law  v. 
Law,  (Gases  temp.  Talbot,  140  ;  3  P.  Wins.  391,)  Lord  Talbot  ordered 
a  bond  to  be  canceled,  and  charged  the  defendant  with  costs,  without  de- 
ciding whether  or  not  it  was  good  at  law. 

It  is  quite  clear  that  the  cases  on  this  subject  cannot  all  be  reconciled, 
except  by  the  general  principle  that  the  exercise  of  this  power  is  to  be 
regulated  by  sound  discretion,  as  the  circumstances  of  the  individual  case 
may  dictate  ;  and  that  the  resort  to  equity,  to  be  sustained,  must  be  ex- 
pedient, either  because  the  instrument  is  liable  to  abuse  from  its  nego- 
tiable nature,  or  because  the  defense  arising  on  its  face  may  be  difficult,  or 
uncertain  at  law,  or  from  some  other  special  circumstances  peculiar  to  the 
case ;  and  rendering  a  resort  fo  equity  highly  proper,  and  clear  of  all  sus- 
p  cion  of  any  design  to  promote  expense  and  litigation.  If,  however,  the 
d.ifect  appears  on  the  bond  itself,  the  interference  of  the  court  will  still 
depend  on  a  question  of  expediency,  and  not  on  a  question  of  jurisdiction.1 

The  delivering  up  of  deeds  and  other  instruments  to  the  party  entitled 
to  them,  when  they  are  improperly  withheld,  is  an  ancient  head  of  equity 
jurisprudence.  The  heirs  at  law  or  devisees,  or  any  party  standing  in 
legal  privity  with  them,  and  who  arc  entitled  to  the  possession  of  the  mu- 
niments of  their  title,  may  maintain  a  bill  for  the  delivery  to  them  of  such 
title  deeds.2 

It  is  true  an  action  at  law  will  lie  for  illegally  withholding  deeds  or  other 
instruments  in  writing  relating  to  the  title  of  property ;  but  in  such  case 
damages  only  can  be  recovered.  Equity  administers  a  better  and  more 
efficient  remedy,  by  requiring  the  delivery  of  the  instrument  to  the  party 
to  whom  it  belongs.3 

1  Hamilton  v.  Curnmings,  1  J.  Cli.  R.  v.  Wise,  3  P.  Wins.  296.    Duncoiuh  v, 

623.  Mayer,  8  Ves.  320. 

*  Harrison  v.   Southcote,   1   Atk.  539.        3  Jackson  v.  Butler,  2  Atk.  300.     Gray 

Ford  v.  Peering.  1  Ves.  jr.  72.     Tanner  v.  Cockerel!,  id.  1H. 


Specific  Performance.  fCli.  4 

On  the  like  principles,  a  remainderman,  whose  interest  is  expectant  on 
a  mere  tenancy  for  life,  may  obtain  the  aid  of  a  court  of  equity  for  the 
better  security  of  his  title,  to  have  the  deeds  and  writings  relative  to  the 
estate,  in  the  hands  of  tenant  for  life,  taken  from  such  eu?tody  and  de- 
posited in  court.  But  where  there  are  intervening  estates  between  that 
of  the  tenant  for  life  and  the  plaintiff,  and  his  interest  is  remote,  the 
court  will  not  interfere  in  his  behalf.1 

It  is  no  inconsiderable  part  of  the  duty  of  equity  to  prevent  mischief.* 
Courts  of  law  redress  an  injury  after  it  has  been  perpetrated,  by  the  in- 
fliction of  damages,  the  fear  of  which,  indeed,  no  doubt  greatly  tends  to 
deter  from  the  commission  of  wrong.  Courts  of  equity,  on  the  other  hand, 
anticipate  the  evil,  and  by  a  seasonable  interposition  of  their  authority, 
prevent  it.  With  a  view  to  this  object,  bills  quia  timet  are  entertained, 
and  various  evils  are  prevented  by  injunction,  which  will  be  more  fully 
discussed  under  the  proper  head. 

On  the  same  principle,  courts  of  equity  will  decree  the  delivery  up  of 
deeds,  or  of  securities  for  the  payment  of  money,  upon  which  the  defend- 
ant might,  against  conscience,  recover  at  law.3 

The  Revised  Statutes,4  Code  of  Procedure5  and  Rules  of  the  Supreme 
Court,6  have  conferred  upon  the  supreme  court  ample  power  to  compel  tho 
parties,  to  any  suit  pending  therein,  to  produce  and  discover  books,  paperu 
and  documents,  in  their  possession  or  power,  relating  to  the  merits  of  any 
such  suit,  or  of  any  defense  therein.  This  renders  a  resort  to  a  court  of 
equity,  in  cases  within  these  legislative  provisions,  in  a  great  many  in- 
stances unnecessary,  but  does  not  supersede  the  jurisdiction  of  courts  of 
equity,  in  any  case,  and  much  less  in  cases  not  covered  by  the  statutes 
A  similar  legislative  provision  exists  at  this  time  in  England.7 


SECTION  IV. 


OF    COMPENSATION  AND  DAMAGES. 


We  will  now  bring  this  chapter  to  a  close,  by  a  few  additional  remarks 
on  the  subject  of  compensation  and  damages  ;  a  branch  of  equitable  relief 
which  is  incidental,  though  not  exclusively  so,  to  bills  for  specific  per- 

1  Ivie  v,  Ivie,  1  Atk.  431.  *  Rules  of  Supreme  Court,  8. 

2  1  Fonb.  Eq.  B.  1,  ch.  1,  §  8,  note  y.  T  15  and  16   Vict.   ch.   86.    Fiott  v. 
1  Ryan  v.  Macraeth,  3  Bro.  Ch.  R.  15.      Mullins,  15  L.  &  E.  R.  350.     16  Jurist, 

*  2  R.  8.  199,  §21  etseq.  946. 

*  Uode  g  383. 


Cli.  4.J  Compensation  and  Damages.  o09 

formance.  It  lias  already  been  occasionally  adverted  to  in  discussing  the 
subject  of*  specific  performance,  and  many  of  the  adjudged  cases  on  the 
subject  have  already  been  brought  to  our  notice.  It  has  been  stated,  in 
preceding  pages,  and  may  well  be  repeated,  that  where  the  object  of  the 
action  is  to  recover  damages  alone,  not  connected  with  any  peculiar  equi- 
table relief,  the  remedy  is  at  law  and  not  in  equity.1  The  ground  for  the 
interference  of  a  court  of  equity  does  not,  in  such  case,  exist,  because 
there  is  no  failure  of  the  remedy  at  law. 

But  when  the  defendant,  having  entered  into  a  contract  to  convey,  sub- 
sequently puts  it  out  of  his  power  to  perform,  specifically,  the  bill  will  be 
retained,  and  an  equivalent  in  damages  awarded.'2  This  doctrine  must 
be  understood  with  the  qualification  that  the  party  puts  it  out  of  his 
power  to  perform,  after  the  commencement  of  the  suit.  This  seems  to  be 
the  view  taken  of  the  case  of  Denton  v.  Stewart,  (supra,)  by  Lord  Eldon, 
and  without  which  it  cannot  be  supported.3  Except  in  very  special  cases, 
it  is  not  the  course  of  proceeding  in  equity  to  file  a  bill  for  a  specific 
performance  of  an  agreement;  praying  in  the  alternative,  if  it  cannot  be 
performed,  an  issue,  or  an  inquiry  before  the  master,  with  a  view  to 
damages. 

The  mode  in  which  damages  are  assessed  in  such  cases,  is  either  by 
an  issue  to  be  tried  by  a  jury,  or  by  a  reference  to  a  master.4  Under 
the  practice  in  this  state,  the  damages  may  doubtless  be  assessed  by  a 
jury,  but  the  most  convenient  mode  is  by  a  reference.  The  same  mode 
of  assessing  damages  is  doubtless  applicable  where  the  compensation  only 
extends  to  the  part  wherein  the  defendant  is  unable  to  perform,  the  plain- 
tiff being  willing  to  accept  such  performance  as  the  defendant  is  able  to 
make,  with  compensation  for  deficiency.5 

Whatever  may  be  the  rule  elsewhere,  and  it  cannot  be  denied  that 
there  is  some  conflict  in  the  cases  on  the  subject,  a  bill  in  equity  will  not 
lie  for  compensation  alone,  except  in  some  peculiar  cases,  nor  will  an 
action  for  specific  performance  be  retained  for  compensation,  unless  in 
cases  where  the  defendant  has  put  it  out  of  his  power,  after  the  corn- 
*  menccment  of  the  suit,  to  fulfill  the  agreement  in  specie.6     In  this  state, 

1  Boyd  v.  Yanderken|>,  1  Barb.  Ch.  ft.  Hatch  v.  Cobb,  4  J.  Oh.  E.  SCO.     Kemp- 

273.     Clifford  v.  Brooke,  13  Yes.  131.  shall  v.  Stone,  5  id.  194. 

a  Denton  v.  Stewart,  cited  1  Foub.  Eq.  4  Woodcock  v.  Bennett,  1  Cowen,  705. 

B.  1,  cb.  1.  §8.  z.     Greenaway  v.  Adams,  Philips  v.  Thompson,  1  J.  Ch.  ft.  151. 

12  Ves,  895.     Philips  v.  Thompson,  1  J.  '  Hepburn  v.  Auld,  5  Crunch,  202.  Pratt 

Ch.  K.  100.     Woodcock  v.  Bennett,    1  v.  Paw,  8  id.  492,  4'J-i. 

Cowen,  711.  •  Philips  v.  Thompson.  1  J.  Ch.  B.  151. 

s  Todd  v.  Gee,    17   Yes.   275,  a.,  278. 


■J10  Specific  Performance.  [Ch.  4 

the  controversy  upon  these  points  is,  under  our  present  practice,  of  no 
moment,  and  not  worth  the  trouble  of  an  examination  of  the  authorities. 
If  the  complaint  contains  a  cause  of  action,  it  is  immaterial  whether  ii 
be  termed  legal  or  equitable,  'whether  it  be  for  specific  performance,  or 
for  compensation,  or  for  both  together.  If  it  be  sustained  by  the  admis- 
sion of  the  defendant,  or  by  the  testimony  in  the  cause,  the  plaintiff  is 
entitled  to  such  relief  as  the  nature  of  his  claim  and  the  justice  of  the 
case  require. 

The  question  with  respect  to  the  right  to  compensation,  is  not  confined 
to  cases  where  the  plaintiff  is  the  actor  and  prays  for  affirmative  relief. 
It  sometimes  arises  in  behalf  of  a  defendant  in  resisting  the  claim  of  the 
plaintiff,  and  is  presented  by  way  of  set-off  or  recoupment.  At  common 
law,  whoever  takes  and  holds  possession  of  land,  to  which  another  has  a 
better  title,  whether  he  be  a  bona,  Jidei  or  a  malce  fidei  possessor,  is 
liable  to  the  true  owner  for  all  the  rents  and  profits  which  he  has  received ; 
but  the  disseizor,  if  he  be  a  bonce  Jidei  occupant,  may  recoupe  the  value 
of  the  meliorations  made  by  him  against  the  claim  for  damages.1  The 
New- York  revised  statutes  have  regulated  the  right  of  the  plaintiff  to 
mesne  profits,  consequent  upon  a  recovery  in  an  ejectment  upon  this 
equitable  principle,  adopting,  with  some  modifications,  the  law  as  it  then 
existed.2  And  the  defendant  is  allowed  to  set  off  permanent  improve- 
ments made  on  the  premises,  to  the  amount  of  the  plaintiff's  claim.3 
The  action  for  mesne  profits  has  always  been  deemed  by  the  courts  of 
law  as  an  equitable  action,  in  which  the  defendant  is  to  be  allowed  an 
equitable  defense.4  The  statute  has  limited  the  plaintiff's  recovery  to 
the  rents  and  profits  for  six  years,  in  estimating  which,  the  value  of  the 
use  by  the  defendant  of  any  improvements  made  by  hirn>  shall  not  be 
allowed  to  the  plaintiff.5 

In  analogy  to  these  principles,  when  industrial  accessions  have  been 
made  to  property,  in  good  faith,  by  a  person  who  has  the  legal  title  to 
the  property,  so  that  the  real  owner  is  compelled  to  resort  to  a  court  of 
equity  to  assert  his  equitable  title  to  such  property,  the  court  acts  upon 
the  civil  law  rule  of  natural  equity,  and  compels  the  complainant  to  com- . 
pensate  the  adverse  party  for  ouch  industrial  accessions,  or  improvements, 
as  a  condition  of  granting  the  equitable  relief  asked  for  in  the  suit.6 
The  law  does  not  deprive  the  legal  owner  of  property  of  the  natura' 

1  Green  v.  Riddle,  8  "Wheat.  1.     Coul-  s  Id.  §  -49.    Jackson  v.  Loornis,  supra, 

ter's  case,  5  Go.  30.     Jackson  v.  Looruis,  4  Murray  v.  Gouverneur,  2  J.  Cas.  433 

4  Cowen,  168.    Putnam   v.   Ritchie,   6  6  2  R.  S.  811,  §  49. 

Paige,  404.  6  Putnam  v.  Ritchie,  6  Paige,  390. 

S2R.  S.  310,  §§44  to  53. 


Ch.  4.]  Compensation  and  Damages.  311 

accessions  to  it.  It  treats  land  as  including  not  only  the  ground  or  soil, 
but  every  tiling  which  is  attached  to  the  earth,  whether  by  the  course  of 
nature,  as  trees,  herbage  and  water,  or  by  the  hand  of  man,  as  houses 
and  other  buildings.1  He  who  owns  the  land,  prima  facie,  is  supposed 
to  own  all  the  buildings  upon  it,  and  which  are  parcel  of  the  freehold. 

But  the  rule  of  natural  equity  appears  to  be  different  in  regard  to  in- 
dustrial accessions,  or  permanent  improvements,  made  upon  the  property 
of  another  by  a  bona  fide  possessor.  By  the  rules  of  the  civil  law,  the 
possessor  of  the  property  of  another,  who  had  erected  buildings  or 
made  improvements  thereon  in  good  faith,  supposing  himself  to  be  the 
owner,  was  entitled  to  payment  for  such  improvements,  after  deducting 
from  the  value  thereof  a  fair  compensation  for  the  rents  or  use  of  the 
property  during  the  time  he  occupied  it.2  The  Code  Napoleon  gives  the 
owner  of  the  soil,  upon  which  buildings  and  works  have  been  made  by 
another,  with  his  own  materials,  an  election  either  to  retain  them,  or  to 
oblige  such  third  person  to  remove  them  at  his  own  expense.  If  he 
elects  to  retain  them,  he  is  bound  to  reimburse  the  other  party  for  the 
value  of  the  materials  and  the  price  of  the  work,  without  regard  to 
the  greater  or  less  augmentation  of  value  which  the  soil  has  received. 
If  the  buildings  be  erected  by  a  party  in  good  faith,  the  proprietor 
recovering  the  land  shall  not  demand  a  demolition  of  the  buildings,  but 
shall  have  his  election,  either  to  repay  the  value  of  the  materials  and 
the  price  of  the  workmanship,  or  to  reimburse  a  sum  equal  to  the  aug- 
mented value  of  the  estate.3  The  rule  to  this  extent  has  not  been 
adopted  in  this  country.  The  rule  of  natural  equity  is,  however,  con- 
stantly acted  upon  by  courts  of  equity  when  the  legal  title  is  in  the  person 
who  has  made  the  improvements  in  good  faith,  and  when  the  equitable 
title  is  in  another  who  is  obliged  to  resort  to  equity  for  relief.  The  court 
in  such  case  acts  upon  the  principle,  that  he  who  comes  as  a  complain- 
ant to  ask  equity  must  himself  be  willing  to  do  what  is  equitable.4 

Whether  this  principle  should  be  carried  out  in  practice,  in  all  cases, 
to  the  extent  that  it  exists  in  the  civil  law,  may,  perhaps,  admit  of  doubt. 
Chancellor  "Walworth,  in  Putnam  v.  Ritchie,  said  he  had  not  been  able 
to  find  any  case,  either  in  this  country  or  in  England,  wherein  the  court 
of  chancery  had  assumed  jurisdiction  to  give  relief  to  a  complainant, 
who  had  made  improvements  upon  land,  the  legal  title  to  which  was  in 
the  defendant,  where  there  had  been  neither  fraud  nor  acquiescence  on 

1  Co.  LiU.  4,  a.     3  Kent's  Com.  401.        555.     Bell's  Law  of  Scotland,  130,  art. 
3  Putnam   v.   Eitcl  ie,    G   Paige,   404.    538.     Rutherf.  Inst.  71. 
Pulr".  B.  4,  ch.  6,  §  6      Code  Nap.  art.        3  Code  Nap.  §  555. 

4  Putnam  v.  Ritchie,  G  Paige,  405. 


812  Specific  Performance.  |Ch.  4. 

the  part  of  the  latter,  after  he  had  knowledge  of  his  legal  rights.  And 
he  expressed  the  apprehension  that  the  introduction  of  that  principle 
into  the  law  of  the  court,  in  its  application  to  future  cases,  might  he  pro- 
ductive of  more  injury  than  benefit.1  On  the  other  hand,  Mr.  Justice 
Story,  whose  labors  have  so  much  enlightened  the  world  on  the  subject 
of  equity  jurisprudence,  inclines  to  the  adoption  of  the  civil  law  rule.2 
In  speaking  of  permanent  meliorations  and  improvements  made  by  a 
bona  fide  possessor,  and  of  the  propriety  of  sustaining  a  bill  in  his  favor 
for  relief  against  the  true  owner,  he  says,  "  that  the  denial  of  all  com- 
pensation to  such  bona  fide  possessor  in  such  a  case,  where  he  has  mani- 
festly added  to  the  permanent  value  of  an  estate  by  his  meliorations  and 
improvements,  without  the  slightest  suspicion  of  any  infirmity  in  his 
own  title,  is  contrary  to  the  first  principles  of  equity.  Take,"  says  he, 
'< the  case  of  a  vacant  lot  in  a  city,  where  a  bona  fide  purchaser  builds  a 
house  thereon,  enhancing  the  value  of  the  estate  to  ten  times  the  orignal 
value  of  the  land,  under  a  title  apparently  perfect  and  complete ;  is  it 
reasonable  or  just  that,  in  such  a  case,  the  true  owner  should  recover 
and  possess  the  whole,  without  any  compensation  whatever  to  the  bona 
fide  purchaser?  To  me  it  seems  manifestly  unjust  and  inequitable,  thus 
to  appropriate  to  one  man  the  property  and  money  of  another,  who  is  in 
no  default." 

But,  however  strong  and  persuasive  may  be  the  equity  of  the  civil 
law  rule,  the  courts  of  this  state  have  not  gone  to  that  extent  in  cases  of 
this  kind.  They  have  contented  themselves  with,  the  application  of  it 
in  a  qualified  manner,  by  requiring  a  party  who  comes  into  equity  for 
relief,  against  a  party  who  has  expended  his  money  in  the  erection  of 
permanent  improvements  on  the  estate,  to  do  equity  himself  as  a  con- 
dition of  the  relief.  There  may,  indeed,  be  a  moral  beauty  in  this  and 
many  other  principles  of  the  civil  law  ;  but  the  adoption  of  them,  in  their 
broadest  extent,  would  change  our  habits  of  business,  and  unsettle  prin- 
ciples which  have  ever  been  regarded  as  sound.  The  common  law  rule, 
moreover,  leads  to  caution  in  the  examination  of  titles,  and  operates  as 
a  restraint  upon  the  appropriation  of  the  property  of  others.  The  loss 
of  compensation  for  industrial  accessions  to  land  of  which  the  title  fails, 
though  apparently  harsh  and  inequitable,  is  in  truth  but  a  penalty  for  an 
invasion  of  the  rights  of  others.  If  one  of  two  innocent  persons  must 
sustain  a  loss  in  such  a  case,  it  should  be  borne  rather  by  him  who  did 
it,  whether  wickedly  or  not,  than  by  him  upon  whom  it  was  inflicted. 

1  Putnam  v.  Ritchie,  6  Paige,  405.  494;  S.  C.  2  Story's  R.  605.     2  Eq.Juria. 

1  Brig*    v.  Boyd,   1   Story's  R.  478,    §  799,  b,  and  note. 


CHAPTER  V. 

tiV    BILLS     OF    INTERPLEADER,    BILLS    OF    PEACE,    BILLS    QUIA    TIMET. 
AND    BILLS    TO    MARSHAL    SECURITIES. 


SECTION  I. 


OF    BILLS    OF    INTERPLEADER. 


THE  remedy  by  interpleader  existed  at  common  law  ;  but  it  bad  but  a 
limited  scope.  It  happened  in  the  case  of  a  joint  bailment  by  both' 
claimants.1  But,  as  the  remedy  at  law  lias  long  since  given  place  to  a 
bill  in  equity  for  the  same  purpose,  it  seems  unnecessary  to  devote  any 
time  to  the  ancient  mode  of  proceeding. 

A  bill  of  interpleader,  strictly  so  called,  is,  according  to  Chancellor 
Walworth,  where  the  complainant  claims  no  relief  against  either  of  the 
defendants,  but  only  asks  that  he  may  be  at  liberty  to  pay  the  money,  or 
deliver  the  property  to  the  one  to  whom  it  of  right  belongs,  and  may  there- 
after be  protected  against  the  claims  of  both.2  In  such  cases,  the  only 
decree  to  which  the  complainant  is  entitled,  is  a  decree  that  the  bill  is 
properly  filed  ;  that  he  be  at  liberty  to  pay  the  fund  into  court,  and  have 
his  costs  ;  and  that  the  defendants  interplead  and  settle  the  matter  be- 
tween themselves.3  Judge  Sutherland,  in  delivering  the  judgment  of 
the  court  of  errors,  in  a  certain  case,4  compiles  from  approved  books  of 
equity  pleading  and  practice,  and  adopts  as  his  own,  this  definition  of 
the  bill :  It  is,  he  says,  defined  to  be  a  bill  exhibited,  where  two  or  more 
persons  claim  the  same  debt  or  duty  from  the  complainant  by  different 
or  separate  interests ;  and  he,  not  knowing  to  which  of  the  claimants  he 
ought  of  right  to  pay  or  render  it,  fears  that  he  may  be  damaged  by  the 

1  Crawsliay  v.  Thornton,  2  Mylne  &  Mitchell  v.  Eayne,  2  Simmons  &  Stu- 
Oraig,  1,  21.  art,  63. 

8  Bedell   v.    Hoffman.    2    Paige,    200.        3  Id. 

4  Atkinson  v.  Manks,  1  Cowen.  703, 
Eg.  Jur  40 


314  Interplead}  r.  [Cb.  5 

defendants,  (as  by  paying  his  money  to  a  wrong  hand,)  and,  therefore, 
exhibits  his  bill  of  interpleader  against  them,  praying  that  the  court 
may  judge  between  them,  to  whom  the  thing  belongs,  and  that  he  may  be 
indemnified.  It  claims  no  right  in  opposition  to  those  claimed  by  tho 
persons  against  whom  the  bill  is  exhibited,  but  only  prays  the  decree  of 
the  court,  to  decide  between  the  rights  of  those  persons  for  the  safety  of 
the  complainant.1 

The  nature  of  the  allegations,  therefore,  says  the  learned  judge,  in 
every  bill  of  interpleader,  are,  1st.  That  two  or  more  persons  have  prefer- 
red a  claim  against  the  complainant ;  2d.  That  they  claim  the  same 
thing  ;  3d.  That  the  complainant  has  no  beneficial  interest  in  the  thing 
claimed  ;  and  4th.  That  he  cannot  determine,  without  hazard  to  himself, 
to  which  of  the  defendants  the  thing  of  right  belongs.2  A  recent  and 
approved  writer  on  equity  jurisprudence,  has  condensed  the  definition 
into  these  words  :  It  is  a  bill  filed  for  the  protection  of  a  person,  from 
whom  several  persons  claim  legally  or  equitably  the  same  thing,  debt  or 
duty ;  but  who  has  incurred  no  independent  liability  to  any  of  them,  and 
does  not  himself  claim  an  interest  in  the  matter.  The  equity  is,  that 
the  conflicting  claimants  should  litigate  the  matter  amongst  themselves, 
without  involving  the  stakeholder  in  their  dispute.3 

The  definition  given  by  Mitford,  Jeremy,  Story  and  Eden,4  is  substan- 
tially the  same.  The  origin  of  the  remedy  in  equity  is,  that  the  legal 
remedy  in  such  cases  is  inadequate,  or  that  there  is  none  at  all. 

Before  proceeding  to  an  examination  of  the  adjudged  cases  on  this  sub- 
ject, it  may  be  well  to  observe  that,  in  England,  a  recent  statute  has 
given  power  to  the  common  law  courts  to  administer  relief,  to  a  certain 
extent,  in  favor  of  a  party  sued  in  the  courts  of  law,  in  any  action  of  as- 
sumpsit, debt,  detinue  or  trover,  in  the  subject  matter  of  which  suit  the 
defendant  claims  no  interest ;  and  when  he  denies  collusion  with  either 
party,  and  is  ready  to  bring  the  money  into  court,  &c.  The  court  make  an 
order,  on  a  proper  application,  for  the  third  party  to  appear  and  state  his 
claim,  &c.  And  powers  are  given  to  the  court  to  direct  an  issue,  &c.£ 
The  jurisdiction  in  equity  does  not  seem  to  have  been  superseded,  or 
impaired,  by  this  summary  remedy  at  law,  as  will  be  seen  more  fully 
when  the  cases  are  examined.6 


1  Cooper's  Eq.   PI.  45,  46.     Har.  Ch.  142.     Story's  Eq.  §  806.  Eden  on  Inj.  by 
Pr.  96.     1  Mad.  Ch.  Pr.  143.  Waterman,  vol.  2,  p.  393,  394,  and  notes. 

2  Atkinson  v.  Manks,  1  Cowen,  703.  5  Stat.  1  and  2,  Will.  4,  ch.  58. 

'  Adams'  Eq.  202.  6  Langton  v.  Horton,  3  Beav.  164. 
*  Mitf.  Eq.  R.  by  Jeremy.  48,  49,  141, 


Ch.  5.J  Interpleader.  315 

In  New- York,  a  summary  remedy  was  given  by  the  cotle  of  1851,  but 
it  is  believed  that  it  does  not  cover  all  the  cases  to  which  bills  of  inter- 
pleader, and  bills  in  the  nature  of  bills  of  interpleader  were  applied.1 
The  enactment  is  as  follows  :  "  A  defendant,  against  whom  an  action  is 
pending  upon  a  contract,  or  for  specific,  real  or  personal  property,  may,  at 
any  time  before  answer,  upon  affidavit,  that  a  person,  not  a  party  to  the 
actior.  and  without  collusion  with  him,  makes  against  him  a  demand  for 
the  same  debt  or  property,  upon  due  notice  to  such  person,  and  the  ad- 
verse part}T,  apply  to  the  court  for  an  order  to  substitute  such  person  in 
his  place,  and  discharge  him  from  liability  to  either  party  on  his  deposit- 
ing in  court  the  amount  of  the  debt,  or  delivering  the  property,  or  its 
value,  to  such  person  as  the  court  may  direct ;  and  the  court  may,  in  its 
discretion,  make  the  order." 

The  summary  remedy  above  provided  does  not  extend  to  cases  where 
no  action  has  been  commenced.  In  this  respect  it  falls  short  of  the  remedy 
by  bill  of  interpleader.  It  is  settled  that  when  a  complainant  is  in  dan- 
ger of  being  doubly  vexed,  as  when  one  of  the  adverse  claimants  of  the 
fund  or  property  in  hand  has  commenced  a  suit,  and  the  other  threatens 
to  do  so,  he  may  file  his  bill  and  ask  the  protection  of  a  court  of  equity. 
Nor  does  it  seem  to  be  necessary  that  both  parties  should  appear  to  have 
a  legal  demand  for  the  same  debt  or  duty,  adverse  to  each  other  ;  for  if  the 
demand  of  one  is  of  such  a  nature  as  to  be  sueable  at  law,  and  the  claim 
of  the  other  grows  out  of  equitable  considerations,  and  is  cognizable  only 
in  equity,  still  it  may  be  proper  to  file  a  bill ;  at  the  same  time  bringing 
the  money  into  court,  and  bringing  the  parties  before  the  court,  in  order 
that  their  conflicting  claims  may  be  adjusted.2  A  complainant,  too, 
against  whom  no  action  has  been  brought  by  either  claimant,  but  who 
is  merely  threatened  by  parties  having  conflicting  rights,  may  maintain 
a  bill  of  interpleader.3  Although  it  usually  happens  that  a  bill  of  inter- 
pleader is  not  filed  until  one  or  other  of  the  several  claimants  has  com- 
menced an  action  against  the  plaintiff,  yet  it  is  well  settled  that  it  is 
enough  that  a  claim  is  made  against  him  and  that  he  is  in  danger  of  being 
harassed  by  conflicting  suits.4  A  claim  alone  is  a  ground  of  interpleader. 
So  a  bill  of  interpleader  lies  where  no  action  is  thratened  or  brought, 
but  where  a  proceeding  has  been  instituted  which  may  subject  the  party 

*  Code  of  Procedure,  §  122.     Code  of        *  Richards  v.  Salter,  G  J.  Ch.  R.  445. 

1851.  Morgan  v.  Marsack,  2Meriy.  107.  Angell 

a  Yates  v.  Tisdale,  3  Edw.  Ch.  E.  74.  v.  Iladden,  15  Ves.  244.    S.  C.  16  id.  202. 

:  Murtinus  v.IIelinuth,  2Ves.  &B.412.  Langston    v.   Roylston,    2  Ves.  jr.    107. 

Gibson  v.  Goldtbwaite,  7  Ala.  R.   281.  Atkinson  v.  Manks,  1   Cowen,   601,  and 

Beok  v.  Stepbani,  9  How.  Pr.  R.  190.  cases  under  preceding  note. 


316  Interpleader.  [Oh.  5 

to  a  double  payment  for  the  same  debt  or  duty.  On  this  principle  it  has 
been  held,  that  a  person  taxed  in  two  difierent  towns  or  counties,  for  the 
6ame  property,  when  he  is  only  liable  to  be  taxed  once,  and  when  it  is 
doubtful  to  which  town  or  county  the  right  to  tax  belongs,  may  file  a  bill 
of  interpleader,  to  compel  the  collectors  of  the  tax  to  settle  the  right  be 
tween  themselves.1 

The  foregoing  remarks  will  suffice  to  show  that  there  are  manj 
cases  where  relief  by  bill  of  interpleader,  or  by  bill  in  the  nature 
of  interpleader,  was  formerly  granted,  that  are  not  embraced  with- 
in the  provisions  of  the  code  of  procedure.  And  it  is  believed,  though 
the  question  has  not  yet  been  decided,  that  in  cases  where  summary  re- 
lief may  be  granted  under  the  code,  the  plaintiff  may  still  have  his  elec- 
tion to  proceed  by  action.  The  principles  which  before  governed  the 
courts  in  administering  this  remedy,  will  be  found  important  to  be  under- 
stood, and  will  furnish  a  safe  guide. 

It  is  no  objection  to  an  interpleader,  as  before  said,  that  one  of  the 
claims  is  of  an  equitable,  and  the  other  of  a  legal  nature.  The  jurisdiction 
attaches,  as  well  in  such  case  as  when  both  are  legal  or  both  equitable.2 

To  sustain  a  bill  of  interpleader,  strictly  so  called,  the  complainant  must 
be  indifferent  between  the  respective  complainants,  and  stand  in  relation 
to  them  as  a  stakeholder.  He  must  not  have  lent  himself  in  any  way  to 
further  the  claim  of  either  party  to  the  fund  in  controversy,  or  to  aid 
one  in  obtaining  the  possession  thereof  to  the  exclusion  of  the  other.3  The 
plaintiff  cannot  sustain  the  bill  if  he  has  colluded  with  either  party  ;  and 
indeed,  the  practice  of  the  court  requires  that  an  affidavit,  denying  all 
collusion,  should  be  annexed  to  the  bill,  and  without  which  it  is  demurra- 
ble.4 If  it  be  a  case  of  money  due  by  the  plaintiff,  he  should  bring  it 
into  court,  and  if  of  other  property,  he  should  offer  to  do  with  it  what  the 
law  requires.5 

As  the  proper  case  for  a  bill  of  interpleader  is,  where  two  or  more  per- 
sons claim  from  a  third  party  the  same  debt  or  the  same  duty,  the  bill  can- 
not be  sustained  between  landlord  and  tenant,  principal  and  agent,  or 
attorney  and  client.  Those  parties  stand  in  a  fiduciary  relation  to  each 
other.     The  tenant  has  nothing  to  do  with  any  claim  adverse  to  his  land 

1  Thompson   v.  Ebbetts,  1   Ilopk.  272.  ■  Marvin  v.  Ellwood,  11  Paige,  374. 

The  Mohawk   and  H.  Railroad  v.  Clute  4  1  Mad.  Ch.  Pr.  144.     Mitf.   Tr.  126. 

et  al.  4  Paige,  384.  Shaw  v.  Corter,  8  Paige,  839.     Atkinson 

•  Richards  v.  Salter,  6  J.  Ch.  R.  445.  v.  Manks,  1  Co  wen,  704. 

Yates  v.  Tisdale,  3  Edw.  Ch.  R.  71,  and  6  Id. 
sate. 


Ch.  5.]  Interpleader  311 

lord.  When  attacked,  he  throws  himself  upon  his  landlord,  who  Is  put 
in  his  place.  If  his  landlord  does  not  recover  for  him,  he  recovers  upon 
the  covenants  in  his  lease  an  ample  recompense.1  With  respect  to  prin- 
cipal and  agent,  there  is  invariably  a  contract  express  or  implied  existing 
between  them.  The  agent  is  always  liable  to  account  to  his  principal. 
Should  he  refuse  to  account  to  his  principal  on  the  ground  that  a  stranger 
made  claims  against  him  for  the  same  matter,  it  is  obvious  that  a  bill 
jf  interpleader,  filed  by  the  agent  against  his  principal  and  such 
stranger,  could  not  determine  the  rights  between  the  principal  and  agent. 
Lord  Cottenham  remarks,  in  one  case.2  that  it  is  familiarly  said,  that 
there  is  no  interpleader  between  landlord  and  tenant,  or  principal  and 
agent ;  but  it  will  be  found  that  the  reason  for  this  lies  deeper  than  might 
be  inferred  from  the  statement  of  this  rule  ;  and  that  it  is  to  be  consid- 
ered not  so  much  as  an  independent  rule,  as  a  necessary  consequence  of 
Ihe  principle  of  interpleading.  In  both  these  cases  rights  and  liabilities 
exist  between  the  parties,  independent  of  the  title  to  the  property,  or  to 
ihe  debt  or  duty  in  question,  and  which  may  not  depend  upon  the  decision 
of  the  question  of  title. 

The  same  principal  applies,  between  attorney  and  client.  The  rela- 
tion between  them  creates  a  duty  different  from  that  which  exists  between 
the  attorney  and  a  stranger.  The  one  is  that  of  confidence  and  trust ;  the 
other,  merely  the  duty  which  one  citizen  owes  to  another.  A  voluntary 
payment  to  his  client,  of  money  collected  by  an  attorney,  in  that  char- 
acter, is  always  a  protection  to  him.  To  permit  an  attorney  to  maintain 
a  bill  of  interpleader  against  his  own  client  and  a  stranger,  in  refer- 
ence to  funds  collected  by  him,  as  such  attorney,  in  order  to  transfer  the 
fruits  of  the  suit  to  another  party,  would  be  contrary  to  sound  morals. 
It  would  be  to  offer  a  premium  to  professional  infidelity.3 

A  bailee,  agent,  or  attorney,  cannot  dispute  the  original  title  of  the 
person  from  whom  he  received  the  property.  Nor  can  he  maintain  a  strict 
bill  of  interpleader  to  settle  conflicting  claims  of  bailor,  or  principal,  and 
a  stranger,  who  claims  the  property  by  a  distinct  and  independent  title.1 
Whether,  under  any  circumstances,  an  attorney  can  sustain  a  bill  of 
interpleader  against  his  client  and  a  stranger,  when  the  client  is  wholly 
irresponsible,  and  when  he  refuses  an  indemnity  against  a  claim  appa- 
rently well  founded,  has  been   doubted.5     To  sustain    such  a  bill,  the 


1  Dungey  v.  Angoor,  2  Ves.  jr.  310.  3  Marvin  v.  Ellwood,  11  Paige,  371. 

Marvin  v.  Ellwood,  11  Paige,  370.  *  Id.  305. 

1  (Vstwsbaw   v.   Thornton,    2  Myl.  &  6  Id. 
Craig.  20. 


318  Interpleader.  [Ch.  5 

complainant  at  least  must  show  that  he  has  good  reason  to  believe  the 
adverse  claim  is  well  founded,  and  that  there  is  no  possibility  of  protect- 
ing himself  from  loss  by  any  other  means  than  by  the  interference  of  the 
court.1  But  he  cannot  sustain  the  bill,  to  settle  the  claim  to  money 
which  he  has  collected  from  his  client,  when  a  mere  stranger  claims  the 
money,  upon  the  ground  that  the  security  upon  which  the  money  was  col- 
lected was  originally  obtained  by  the  client  wrongfully.2 

It  seems,  however,  that  a  bill  of  interpleader  may  be  sustained  by  an 
attorney  against  defendants  who  set  up  a  derivative  claim  to  money  col- 
lected for  his  client,  and  that  his  lien  on  the  same  for  his  costs  is  no 
objection  to  the  action.3  In  such  case,  there  is  no  privity  between  the 
attorney  and  the  claimants,  and  no  duty  is  owing  by  the  former  to  the 
latter,  but  -what  is  common  to  both.  In  short,  he  stands  indifferent 
between  them,  with  respect  to  the  matter  in  controversy. 

In  a  strict  bill  of  interpleader  the  same  thing,  debt  or  duty,  must  bo 
claimed  by  both,  or  all  the  claimants,  if  there  be  more  than  two.  Sup- 
pose the  vendee  of  goods  should  be  sued  by  the  vendor  for  the  price,  and 
by  a  third  person  claiming  a  right  paramount  to  that  of  the  vendor.  Hero 
it  is  obvious  that  a  bill  of  interpleader  will  not  lie,  because  one  of  the 
claimants  merely  seeks  to  enforce  a  contract,  and  the  other  claims  the 
value  as  for  an  unlawful  conversion.4  And  such  a  case  has  been  held  in 
England  not  to  be  within  the  interpleader  act.5  On  the  same  principle, 
where  a  party,  having  purchased  a  rick  of  hay  from  an  executor  de  son 
tort,  was  threatened  with  a  suit  from  the  rightful  administrator  of  the 
same  estate,  and  payment  demanded,  he  was  held  not  to  be  entitled  to 
maintain  a  bill  of  interpleader,  or  to  have  relief  under  the  interpleader 
act.  As  actual  purchaser  he  was  liable  on  his  express  contract,  unless  he 
could  defend- the  action.  To  the  rightful  administrator  he  was  liable  only 
in  tort  for  the  conversion.  Though  the  property  claimed  was  the  same, 
the  duty,  or  obligation,  was  different.6 

A  party  who  is  under  an  independent  liability  to  one  of  the  claimants, 
cannot  maintain  an  interpleader.  In  such  a  case  he  does  not  stand 
indifferent  between  the  claimants.  It  is  on  this  principle,  as  already 
shown,  a  bill  of  interpleader  does  not  lie  between  landlord  and  tentant, 
principal  and  agent,  and  attorney  and  client.     But  a  tenant,  not  disputing 


1  Marvin  v.  Ell  wood,  11  Paige,  365.  6  Slaney  v.  Sidney,  14  Mess.  &  Welsb, 

3  Id.  800. 

8  Gibson  v.  Goldthwaite,  7  Ala.  R.  281.  6  James  v.  Pritchard,  7  Mess.  &  Welsh. 

4  Slaney  v.  Sidney,  14  Mess.  &  Welsb.  216.     Glyn  v.  Dnesbury,  11  Sim.  139. 
89Q. 


Oh.  5.J  Interpleader.  E19 

the  title  of  his  landlord,  but  affirming  that  title,  the  tenure  and  the  con- 
tract, by  which  the  rent  is  payable,  may  file  a  bill  of  interpleader,  m  hen 
it  is  uncertain  to  whom  the  rent  is  to  be  paid.1  Though  the  tenant,  on 
notice  of  an  ejectment  by  a  stranger  under  a  title  adverse  to  that  of  the 
landlord,  cannot  file  a  bill  of  interpleader  against  his  landlord,2  yet  this 
rule  does  not  hold  where  the  question  arises  upon  the  act  of  the  landlord 
subsequent  to  the  lease.3  The  landlord  has  no  right  to  complain  in  such 
a  case,  because  the  necessity  for  the  interposition  of  equity  is  occasioned 
by  his  own  act,  and  is  in  no  sense  an  act  of  hostility  by  the  tenant  to 
the  title  under  which  he  holds. 

If  the  plaintiff  c'aims  a  beneficial  interest  in  the  subject  in  controversy 
he  cannot  maintain  a  bill  of  interpleader.4  In  an  action  brought  against 
an  auctioneer  for  a  deposit,  he  cannot  file  a  bill  of  interpleader,  if  ho 
insists  upon  retaii.ing  either  his  commission  or  the  auction  duty.5  With 
respect  to  the  commission  and  duty,  the  plaintiff  is  not  indifferent.  He 
claims  that  amount  as  his  own,  and  proposes  only  to  bring  into  court  the 
balance.  If  th*i  defendants  claim  the  whole  sum  without  such  deduction, 
and  threaten  t;>  prosecute  for  the  same,  the  offer  of  the  plaintiff  to  bring 
into  court  tho  balance,  after  deducting  the  commissions  and  auction  duty. 
is  not  as  br'.ad  as  the  claim,  and  thus  leaves  a  part  an  open  subject  of 
controversy  between  the  complainant  and  the  defendants.  This  is  incom- 
patible with  the  rights  of  the  plaintiff  in  a  bill  of  interpleader.  W 

15  it  it  is  no  objection  to  a  bill  of  interpleader,  that  the  complainant 
h:is  an  interest  in  respect  of  other  property  not  in  the  suit,  but  which 
might  be  litigated,  that  one  party  rather  than  the  other  should  succeed 
in  the  interpleader,  so  as  to  increase  his  own  chance  of  success,  in  re- 
spect of  such  other  property.  Such  interest  may  be  termed  an  interest 
in  the  question,  but  not  in  the  particular  suit,  and  does  not  prevent  him 
from  filing  an  interpleader.  If,  however,  the  complainant  be  liable  to 
cither  party  in  respect  of  the  specific  j 'unci  in  dispute,  beyond  the  ques- 
tion of  property,  or  makes  claim  on  the  fund,  which  either  of  the  defend- 
ants contests,  it  is  not  a  proper  case  for  an  interpleader.6  So  the  lien 
of  an  attorney  for  his  costs  of  collecting  tho  money  is  no  objection  to  a 
bill  of  interpleader,  filed  against  defendants,  who  set  up  a  derivative 
claim  from  the  person  for  whom  the  attorney  undertook  the  collection.7 

1  Pungey  v.  Angove,  2  Ves.  jr.  312.  6  Id. 

3  Id.  e  Oppcnheira  v.  Leo  Wolf,  3  Sandf.  Ch. 

'  Oowtan  v.  Williams,  9  Ves.  107.  R.  571. 

*  \tkinson  v.    Manks,  1  Cowan,  703.  7  Gibson  v.  Goldthwaito,   7  ATabama 

Moore  v.  Usher,  7  Sim.  384.     Mitchell  Rep.  281 
7.  Hayne,  2  Sim.  &  Stu.  63. 


?dO  Interpleader.  [Cli.  h. 

Those  persons  take  in  subordination  to  the  attorney's  lien,  and  -what  re* 
mains,  after  deducting  the  costs,  is  alone  the  subject  of  controversy. 

The  complainant  cannot  sustain  the  bill  if  he  is  obliged  to  admit,  that 
as  to  either  of  the  defendants,  he  is  a  wrongdoer.1 

He  must  show  that  he  is  ignorant  of  the  rights  of  the  respective  par- 
ties, who  are  called  upon  by  him  to  interplead,  and  settle  their  rights 
between  themselves  ;  or  at  least  that  there  is  some  doubt,  in  point  of  fact, 
to  which  claimant  the  debt  or  duty  belongs.  And,  therefore,  if  he  states 
a  case  in  his  bill  which  shows  that  one  defendant  is  entitled  to  the  debt 
or  duty,  and  that  the  other  is  not,  both  defendants  may  demur.2 

The  plaintiff,  by  filing  a  bill  of  interpleader,  admits  a  title  as  against 
himself  in  all  the  defendants.3  He  cannot,  therefore,  after  filing  the  bill 
set  up  a  right  in  himself  to  the  fund  in  controversy.4 

When  the  plaintiff  has  a  complete  protection  at  law  against  the  con- 
flicting claims,  a  bill  of  interpleader  will  not  lie.  Hence,  in  the  city  of 
New-York,  the  owner  of  a  building  cannot  interplead  the  contractor  by 
whom  it  icas  erected,  and  the  creditors  of  such  contractor,  in  relation  lo 
the  balance  due  from  the  owner  upon  the  building  contract,  when  tt.e 
creditors  make  claim  under  the  act  for  the  better  security  of  mechanics,3 
and  such  claims  are  disputed  by  the  contractor.6  The  plaintiff  has  a 
complete  protection  at  law,  without  the  necessity  of  a  resort  to  equity. 

The  objection  in  the  last  mentioned  case  was  not  on  the  ground  that 
there  were  more  than  two  claimants.  There  appears  to  be  no  difficulty 
la  principle  in  maintaining,  in  favor  of  a  stakeholder,  a  bill  against  three 
or  more  persons,  each  claiming  in  a  distinct  and  different  right,  the  same 
property,  as  well  as  against  two  persons  claiming  in  the  same  manner.7 

A  bill  of  interpleader,  it  has  already  been  shown,  lies  only  where  the 
plaintiff  claims  no  interest  in  the  subject  matter.  There  are.  however, 
many  cases,  where  a  bill  in  the  nature  of  a  bill  of  interpleader  will  lie  by  a 
party  in  interest  to  establish  his  own  rights,  where  there  are  other  con- 
flicting rights  between  third  persons.51     If,  for  example,  a  plaintiff  is  en- 

1  Shaw  v.  Coster,   8  Paige,  339.     Gwin  6  The  Dry  Dock  Meth.  Ep.  Church  v. 

v.  Green,  1  Iredell's  Eq.  R.  229.  Carr,  2  Barb.  S.  C.  R.  60. 

5  Shaw  v.  Coster,  8  Paige,  339.     Bell  7  Story's  Eq.  §  814.     Adams'  Eq.  202 

v.  Hunt,  3  Barb.  Ch.  R.  391.  Hoggart  v.  Cutts,  1   Cr.  &  Philips,  197. 

'  Gwin  v.  Green,   1   Iredell's   Eq.  R.  Briggs  v.  Kouns,  7  Dana,  411.     Hays  v. 

229.     Anderson  v.  Wilkinson,  10  Sni.  &  Johnson,  4  Ala.   R.   267.     Atkinson  v 

Marsh.  601.  Hanks,  1  Cowen,  703. 

*  Id.  s  Bedell  v.  Hoffman,  2  Paige,  199. 

•  Laws  of  1830,  ch.  330,  p.  412. 


Ch    5.J  iNTERfcLEADEB.  S21 

titled  to  equitable  relief  against  the  owner  of  property,  and  the  legal 
title  thereto  is  in  dispute  between  two  or  more  persons,  so  that  he  cannot 
ascertain  to  which  it  actually  belongs,  Ae  may  file  a  bill  against  the  sev- 
eral claimants  in  the  nature  of  a  bill  of  interpleader  for  relief.1  So  it 
seems  a  purchaser  may  file  a  bill  in  the  nature  of  a  bill  of  interpleader, 
against  the  vendor,  or  his  assignee,  and  any  creditor  who  seeks  to  avoid  the 
title  of  the  assignee,  and  pray  the  direction  of  the  court  as  to  whom  the  pur- 
chase money  shall  be  paid.  So,  if  a  mortgagor  wishes  to  redeem  the  mort- 
gage estate,  and  there  are  conflicting  claims  between  third  persons  as  to 
their  title  to  the  mortgage  money,  he  may  bring  them  before  the  court,  to 
ascertain  their  rights,  and  to  have  a  decree  for  a  redemption,  so  that  he 
may  make  a  secure  payment  to  the  party  entitled  to  the  money.  In  these 
cases  the  plaintiff  seeks  relief  for  himself;  whereas,  in  an  interpleading 
bill,  strictly  so  called,  the  plaintiff  only  asks  that  he  may  be  at  liberty 
to  pay  the  money,  or  deliver  the  property  to  the  party  to  whom  it  belongs, 
and  may  thereafter  be  protected  against  the  claims  of  both.2 

As  the  plaintiff,  in  a  strict  bill  of  interpleader,  claims  no  relief  against 
cither  of  the  defendants,  the  only  decree  to  which  he  is  entitled  is,  that 
the  bill  is  properly  filed ;  that  he  be  at  liberty  to  pay  the  fund  into  court, 
and  have  his  costs,  and  that  the  defendants  interplead  and  settle  the  mat- 
ter between  themselves.3  If  the  bill  be  rightly  filed,  the  plaintiff  is  of 
course  entitled  to  his  costs  out  of  the  fund,  and  which  are  eventually  to 
fall  upon  the  party  who  is  in  the  wrong.4 

If  the  bill  be  not  a  strict  lull  of  interpleader,  but  only  in  the  nature  of 
a  bill  of  interpleader,  costs  are  not  a  mere  matter  of  right,  but  as  in  oth- 
er equity  cases,  rest  in  the  discretion  of  the  court.5 

The  New- York  code  of  procedure  has  made  no  provision  for  costs  in 
actions  of  interpleader,  by  name,  but  the  306th  section  probably  vests 
the  court  with  the  same  discretion  in  such  actions,  as  existed  before.  And 
costs  should  doubtless  be  granted  or  withheld,  under  the  like  circum- 
stances and  in  the  same  manner,  as  under  the  former  practice. 

If  the  plaintiff's  right  to  file  the  bill  be  contested  by  either  of  the  de- 
fendants, the  issues  must  be  tried  as  in  other  cases.  "When  it  appears  by 
tne  answers  of  the  defendants,  or  by  the  proofs,  that  there  is  enough  be- 


Mohawk  and  II.  Railroad  Co.  v.  Clute,  'Bedell    v.    Hoffman,    2    Paige,    200. 

4  Paige,  384.  Mitchell  v.  Ilayne,  2  Sim.  &  Stu.  63. 

'  2  Eden  on   Inj.  by  Waterman,  400,  *  Yates  v.  Tisdale,  3    Edw.  Ch.  R.  74 

note.  Caniicld  v.  Morgan,  1  Hopk.  224. 


•  Bedell  v.  Hoffinan.  2  i'.o .■;«,  200. 


Eq.  Jvr.  41 


322  Interpleader.  [Ch.  5. 

fore  the  court  to  decide  the  whole  controversy  between  all  the  parties, 
without  directing  the  defendants  to  interplead  each  other,  it  is  usual  to 
grant  a  decree  accordingly.1  This  seems  also  to  be  the  English  practice. 
Questions  arising  in  such  actions,  said  Sir  William  Grant,2  are  disposed 
of  in  various  ways,  according  to  the  nature  of  them.  An  interpleading 
bill  is  considered  as  putting  the  defendants  to  contest  their  respective 
claims,  just  as  a  bill  by  an  executor  or  trustee  to  obtain  the  direction  of 
the  court  upon  the  adverse  claims  of  the  different  defendants.  If,  there- 
fore, at  the  hearing,  the  question  between  the  defendants  is  ripe  for 
a  decision,  the  court  decides  it ;  and  if  it  is  not  ripe  for  decision,  di- 
rects an  action,  or  an  issue,  or  a  reference  to  a  master,  as  may  best  suit 
the  nature  of  the  case.  In  the  Duke  of  Bolton  v.  "Williams,3  the  ques- 
tion was  ripe  for  decision ;  and  was  decided  in  favor  of  one  defendant 
against  the  other  ;  and  that  decree  was  affirmed  upon  the  rehearing.  Lord 
Kenyon  made  a  similar  decree  at  the  rolls,  in  Hodges  v.  Smith,  (1  Coxe's  Eq. 
357.)  The  bill  in  that  cause  was  filed  by  a  tenant,  for  the  purpose  of  ascertain- 
ing to  which  of  two  different  claimants  he  was  to  pay  his  rent :  one  of  the  de- 
fendants established  his  title  by  evidence ;  the  other  made  default  at  the 
hearing.  Lord  Kenyon  directed  the  rent  for  the  future  to  be  paid  to  the 
one  ;  and  granted  a  perpetual  injunction  against  the  other.  That  could 
not  be  such  a  decree  as  is  ordinarily  made  at  the  prayer  of  the  plaintiff, 
when  the  defendant  makes  default,  for  the  plaintiff  in  an  interpleading 
bill  does  not  pray  any  decree  in  favor  of  one  defendant  against  another. 
It  must,  therefore,  have  been  either  a  decree  prayed  by  one  of  the  defend- 
ants, or  such  as  the  court  thought  it  right  to  pronounce  between  them. 
In  Atkinson  v.  Manks,4  already  cited,  no  replication  was  filed,  and  a  ref- 
erence was  ordered  on  the  answer  of  the  defendants;  and  the  question 
came  up  on  exceptions  to  the  master's  report.  In  that  case,  too,  the  "costs 
of  all  the  parties,  plaintiffs  and  defendants,  were  deducted  from  the  fund. 
The  provisions  of  the  code  of  procedure  are  broad  enough  to  embrace 
any  ordinary  form  of  decree  in  bills  of  interpleader.  Thus,  it  is  enacted, 
that  judgment  may  be  given  for  or  against  one  or  more  of  several  plain- 
tiffs, and  for  or  against  one  or  more  of  several  defendants,  and  it  may 
determine  the  ultimate  rights  of  the  parties  on  each  side,  as  between 
themselves.5     This  provision  is  obviously  inapplicable  to  actions  at  law 

1  City  Bank  v.  Bangs,  2  Paige,  570.  2  Angell  v.  Hadden,  1G  Yes.  203. 

Yates  v.  Tisdale,  3  Edw.  Ch.  K.  71.  Sperry  3  2  Yes.  jr.  138. 

v.  S.Carolina  Ins.  Co.  8  Wheat.  268.     Gib-  4  1  Cowen,  693. 

son  v.  Goldthwaite,  7  Ala.  281.  i  Code  of  Procedure,  §  2.  i- 


Ch.  5.]  Bills  of  Peace,  323 

and  is   the  appropriate  termination  of  a  bill  of  interpleader  in  many 
cases,  and  occasionally  of  other  actions  in  equity. 

The  transactions  of  individuals  are  sometimes  of  such  a  character  that 
the  remedial  agency  ef  a  bill  of  interpleader,  or  a  bill  in  the  nature  of 
an  interpleader,  becomes  indispensable.  But,  though  this  be  so,  the 
courts  do  not  look  with  favor  upon  them  in  general,  and  express  an  un- 
willingness to  countenance  new  inventions,  in  bringing  such  actions  * 


SECTION  IX 


OP    BILLS    OF    PEACE. 


A  bill  of  peace,  to  prevent  litigation  at  law,  is  allowed  only  in  case  tire 
plaintiff  has  satisfactorily  established  his  title  at  law,  or  when  the  per- 
sons who  controvert  the  right  are  so  numerous  as  to  render  an  issue 
under  the  direction  of  the  court  necessary  to  bring  in  all  the  parties  con- 
cerned, and  prevent  a  multiplicity  of  suits.2  The  court  does  not  gene- 
rally interfere,  by  means  of  this  remedy,  between  two  individuals,  until  the 
right  has  been  established  at  law,3  But  where  a  man  sets  up  a  general 
exclusive  right,  and  where  the  persons  who  controvert  it  with  him  are 
vf»ry  numerous,  and  he  cannot  by  one  or  two  actions  at  law  quiet  that 
right,  he  may  come  into  equity  first  by  bill  of  peace,  and  the  court  will 
•direct  an  issue  to  determine  the  right,  as  in  disputes  between  lords  of 
tr  anors  and  their  tenants,  and  between  tenants  of  one  manor  and  another } 
fcr  in  these  cases  there  would  be  no  end  of  bringing  actions  of  trespass, 
since  each  action  would  determine  only  the  particular  right  in  question 
between  the  plaintiff  and  defendant 

There  appears,  therefore,  to  be  two  classes  of  cases  in  which  a  court  of 
equity  entertains  jurisdiction  by  bill  of  peace,  to  quiet  the  rights  of  par- 
ties, and  to  put  an  end  to  further  litigation  upon  the  same  subject : 
First,  when  the  plaintiff  has  been  in  the  actual  possession  for  some  con- 
siderable time,  and  his  rights  are  contested  by  numerous  parties,  either 
in  the  same,  or  upon  distinct  rights  ;  and  second,  when  the  plaintiff, 
after  repeated  trials  at  law,  has  established  his  right  at  law,  and  is  never- 
theless in  danger  of  further  litigation  by  parties  who  controvert  that 
right. 

'  Metealf  v.  Harvey.  1  Ves.  240.     Be-        5  Eldridge  v.  Hill,  2  J.  Ch.  R.  281. 
dell  v.  Hoffman,  2  Paige,  201.     1  Mad.        "  Teuham  v.  Herbert,  2  Atk.  48&. 
Ch.  Pr.  148. 


824  Bills  of  Peace.  [CIi.  5 

A  few  examples  under  each  head  will  be  sufficient  to  illustrate  the 
jurisdiction  exercised  by  courts  of  equity  in  such  cases. 

Thus,  it  has  been  held  that  a  man,  who  had  been  in  possession  of  a 
water-course  sixty  years,  might  bring  a  bill  to  be  quieted  in  his  posses- 
sion, although  he  had  not  established  his  right  at  law.1  So,  also,  when 
there  has  been  a  possession  of  a  fishery,  for  a  considerable  length  of 
time,  a  person  who  claims  a  sole  right  to  it  may  bring  a  bill  to  be  quieted 
in  the  possession,  though  he  has  not  established  his  right  at  law ;  and  it 
is  no  objection  to  such  bill  that  the  defendants  have  distinct  rights.2  As 
where  a  right  of  fishing  upon  the  river  Ouse,  for  nine  miles  in  extent, 
was  claimed  by  the  corporation  of  York,  who  had  constantly  exercised 
that  right,  but  which  was  opposed  by  diiferent  lords  of  manors,  a  bill  of 
this  description  was  admitted  to  establish  the  right  against  these  several 
opponents,  for  it  would  have  been  endless  for  the  corporation  to  have 
brought  actions  at  law.3  In  another  case,  where  the  plaintiff  brought 
his  bill  in  order  to  establish  his  right  to  an  oyster  fishery,  and  to  be 
quieted  in  the  possession  of  it,  against  the  defendant,  who  claimed  the 
piece  of  ground  where  the  fishery  was,  as  belonging  to  his  manor,  a  de- 
murrer was  allowed,  because  when  the  question  about  a  right  of  fishery- 
is  only  between  two  lords  of  manors,  neither  of  them  can  come  into  a 
court  of  equity  till  the  right  is  first  tried  at  law.  And  Lord  Hardwicke 
said,  it  is  certain  that  where  a  man  sets  up  a  general  exclusive  right,  and 
where  the  persons  who  controvert  it  with  him  are  very  numerous,  and  he 
cannot  by  one  or  two  actions  at  law  quiet  that  right,  he  may  come  into 
a  court  of  equity  first,  which  is  called  a  Bill  of  Peace,  and  the  court  will 
direct  an  issue  to  determine  the  right,  as  in  disputes  between  lords  of 
manors  and  their  tenants,  and  between  tenants  of  one  manor  and  another  ; 
for  in  these  cases  there  would  be  no  end  of  bringing  actions  of  trespass, 
since  each  action  would  determine  only  the  particular  right  in  question 
oetween  the  plaintiff  and  defendants.4 

Such  a  bill  may  be  brought  as  well  by  tenants  against  a  lord,  as  by  a 
lord  against  tenants.5 

Such  a  bill  was  entertained  at  the  instance  of  the  New  River  Com- 
pany, to  quiet  them  in  the  possession  of  pipes  laid  through  the  defend 
ant's  field.6     It  was  sustained  where  several  tenants   claimed  the  right 

1  Bush  v.  "Western,  cited  in  Mayor  of  i  Conyers  v.  Lord  Abergavinny,  1  Ati 
fork  v.  Pilkington,  1  Atk.  284.  285. 

2  Mayor  of  York  v.  Pilkington,  id.  282.        6  New  Paver  Co.  v.  Graves,  2  Vern 
*  Td.     Tenham  v.  Herbert,  2  Atk.  483.    431. 

IJ.     How  v.  Bromsgrove,  1  Vern.  22. 


Ch.  5.J  Bills  op  Peace.  325 

to  the  profits  of  a  iair.1  And  it  lias  been  sustained  in  numerous  analo- 
gous cases.2 

The  distinction  between  the  two  classes  of  cases  in  which  this  speeiea 
of  relief  is  granted,  has  been  recognized  by  the  court  of  errors  in  New- 
York.3  The  object  of  the  equity  power,  in  such  cases,  says  Kent,  Ch. 
J .,  in  his  learned  opinion,  is  as  beningn  as  it  is  rational ;  and  Van  Ness, 
J.,  in  the  same  case  said,  courts  of  law,  in  some  cases,  have  not  the  power 
of  putting  an  end  to  vexatious  and  oppressive  litigation.  Actions  of 
ejectment,  and  in  some  cases  actions  of  trespass,  may  be  repeated  again 
and  again,  until  the  sinews  of  litigation  are  exhausted,  and  until  the 
resources,  but  not  the  spirit,  of  the  parties  fail.  This  is,  perhaps,  a  de- 
fect in  the  common  law  system  ;  which  is  supplied,  in  certain  cases,  by 
the  enlarged  and  superintending  powers  of  a  court  of  chancery. 

In  one  case,  in  the  supreme  court  of  the  United  States,  Marshall,  Ch. 
Justice,  said,  that  an  application  to  restrain  a  person  from  the  assertion 
of  title  in  the  ordinary  course  of  judicial  proceedings  ought  not  to  be 
granted  in  a  doubtful  case  ;  but  if  the  case  is  a  clear  one,  the  interposition 
of  equity  is  allowable  ;  and  the  situation  of  the  land  adjoining  a  growing 
city,  the  number  of  persons  who  are  consequently  interested  in  the 
settlement  of  the  question,  and  the  numerous  titles  which  depend  on  it, 
give  it  peculiar  claim  to  the  attention  of  the  court.4  And  Chancellor 
SanforjJ  said,  in  one  case,  that  where  the  right  of  the  plaintiff  is  an  abso- 
lute and  clear  title,  requiring  no  trial  at  law  to  establish  it,  and  sup- 
ported by  a  long  possession,  if  it  be  disputed  by  the  defendants,  the 
violation  of  it  will  be  restrained  by  injunction.  In  that  case,  too,  the 
parties  were  numerous.5 

The  right  claimed  must  affect  many  persons,  to  warrant  the  court  to 
interfere  in  this  way  ;  for  if  the  controversy  be  between  two  persons  only, 
on  their  own  account,  and  not  as  representing  large  numbers,  it  is  said 
the  bill  will  be  dismissed.  On  this  principle,  Lord  Chancellor  King 
decided  that  a  bill  could  not  be  brought,  by  a  single  copy-holder,  to  be 
relieved  against  an  excessive  fine.  He  admitted,  in  the  same  case,  that 
a  bill  might  lie  in  order  to  settle  a  general  fine  to  be  paid  by  all  the  copy- 
hold tenants  of  a  manor,  to  prevent  multiplicity  of  suits.6     So  when  a  bill 

1  New  Elmo  Hospital  v.  Andover,   1        *  Alexander  v.  Pendleton,  8  Craneh, 

Vern.  2G6.  220. 

a  Trustees  of  Huntington  v.  Nicoll,  3         6  Reid  v.  Gilford.  1  ITopk.  418. 
J.  R.  686,  589,  602,  604.  •  Cowper   v.  Clerk,  3    P.  "Wins.    157 

'  Eden  on  In j una  by  Waterman,  418  Disney  v.  Robertson,  Buub.  41. 
et  seq.  and  notes. 


S'M  BrLLs  of  Peace;.  fClk.  5 

was  brought  by  one  tenant  of  a  manor,  suggesting  a  custom  for  the  ten- 
ants of  a  manor  of  A.,  of  which  he  was  oner  to  cut  turves  in  the  manor  of 
B.  to  quiet  him,  and  to  have  the  issue  directed  as  to  the  right ;  upon  this 
occasion,  the  court  said,  this  bill  is  improper,  and  inconsistent  with  the 
nature  of  a  bill  of  peace,  which  is.  that  where  several  persons  having  the 
same  right  are  disturbed,,  on  application  to  the  court  to  prevent  expense 
and  multiplicity  of  suits,  issues  will  be  directed,  and  one  or  two  determi- 
nations will  establish  the  right  of  all  parties  concerned,  on  the  foot  of 
one  common  interest,  and  the  bill  is  preferred  by  all  the  parties  inter- 
ested, or  a  determinate  number  in  the  name  of  themselves  and  the  rest ; 
but  in  this  case  one  only  brings  the  bill  on  the  general  right,  and  not  on 
the  foot  of  any  particular  distinct  right,  and  therefore  the  bill  was  dis- 
missed.' 

The  other  class  of  cases,  under  the  head  of  Bills  of  Peace,  comprises 
cases  where  the  plaintiff,  after  repeated  trials  at  law,  has  established  his 
right  at  law,  and  is  nevertheless  in  danger  of  further  litigation,  by 
parties  who  claim  that  right.  Lord  Redesdale  thus  describes  this  juris- 
diction :  "  In  many  cases  the  courts  of  ordinary  jurisdiction  admit,  at  least 
for  a  certain  time,  of  repeated  attempts  to  litigate  the  same  question. 
To  put  an  end  to  the  oppression  occasioned  by  the  abuse  of  this  privi- 
lege, the  courts  of  equity  have  assumed  jurisdiction.  Thus,  actions  of 
ejectment  having  become  the  usual  mode  of  trying  titles  at  the  common 
law,  and  judgments  in  those  actions  not  being  in  any  degree  conclusive, 
the  courts  of  equity  have  interposed  ;  and  after  repeated  trials,  and  satis- 
factory determination  of  questions,  have  granted  perpetual  injunctions  ta 
restrain  further  litigation  ;  and  thus  have  in  some  degree  put  that  restraint 
upon  litigation,  which  is  the  policy  of  the  common  law  in  the  case  of  real 
actions."2  This  jurisdiction  was,  at  an  early  day,  questioned.  In  a  cele- 
brated case,3  the  title  was  a  mere  legal  one,  and  the  complainant,  after 
five  trials  in  ejectment,  and  verdicts  in  each  case  for  him,  brought  a  bill 
of  peace  for  a  perpetual  injunction.  Lord  Cowper  refused  to  grant  the 
relief,  on  the  ground  that  it  was  only  a  controversy  between  two  indi- 
viduals, and  not  a  proper  case  for  a  Bill  of  Peace.  But  the  decree  of 
the  chancellor  was  reversed  by  the  house  of  lords,  and  a  perpetual 
injunction  granted.  The  principle  thus  established  has  ever  since  been 
followed,  that  when  the  right  has  been  established  by  several  trials, 

1  Harrison's  Ch.,  vol.  1,  p.  124.  1  Mad.  3  Earl  of  Bath  v.  Slierwm,  Prec.  Ch 
Ch.  Pr.  140.  261. 

*  Mitforu's  Eq.  PI.  by  Jeremy,  143, 144. 


Cli.  5.]  JBills  of  Peace.  327 

equity  will  quiet  the  title  by  Bill  of  Peace,  and  put  an  end  to  further 
litigation.  In  a  later  case,1  a  trust  estate  having  been  devised  by  wilt 
and  the  will  was  disputed,  the  court,  after  two  trials  in  favor  of  the  will, 
granted  a  perpetual  injunction.  The  chancellor  said,  it  is  certainly  an 
inconvenience  in  the  law  that  there  should  be  no  end  of  trials  in  eject- 
ment, and  that  one  trial  in  a  real  action,  which  perhaps  may  be  a  trial 
at  nisi  prius,  should  be  final,  when,  at  the  same  time,  twenty  trials  in 
ejectment  and  at  the  bar  in  Westminster  Hall  will  not  be  conclusive.2 

The  reasons  above  given  for  a  Bill  of  Peace,  after  two  or  more  recov- 
eries in  an  ejectment,  do  not  exist  in  New-York,  since  the  adoption  of  the 
revised  statutes  of  1830.  The  abolition  of  fictitious  parties  to  the  action, 
and  the  making  of  the  judgment  rendered  upon  the  verdict  conclusive,  as 
to  the  title  established,  in  such  action,  upon  the  party  against  whom  it 
was  rendered,  and  against  all  claiming  under  him,  and  the  provision  for 
two  new  trials,  upon  the  application  of  the  failing  party,  granted  within  a 
limited  time  after  the  first  verdict,  and  upon  payment  of  costs,  were  de- 
signed to  prevent  the  endless  litigation  which,  but  for  a  court  of  equity, 
might  be  carried  on  by  actions  of  ejectment.3 

There  is,  however,  some  scope  for  the  bill  in  matters  of  a  personal  na 
ture.  There  are  some  cases  where  it  partakes  of  the  nature  of  a  bill  for 
specific  performance,  and  some  where  it  resembles  the  remedy  by  bill 
quia  timet.  Thus  the  surety  may  have  relief  in  equity  against  the  prin- 
cipal, after  the  debt  becomes  due,  and  before  it  has  been  paid  by  the 
former,  and  the  latter  be  decreed  to  save  the  surety  harmless.4 

The  code  contains  no  provision  which  renders  the  remedy  by  Bill  of 
Peace  impracticable.  It  allows  all  persons  having  an  interest  in  the  sub- 
ject of  the  action,  and  in  obtaining  the  relief  demanded,  to  be  joined  as 
plaintiffs  ;  and  any  person  who  claims  an  interest  adverse  to  the  plaintiff, 
or  who  is  a  necessary  party  to  a  complete  determination  or  settlement  of 
the  questions,  to  be  defendant.5  And  the  plaintiff  is  allowed  to  join  in 
the  same  complaint  several  causes  of  action,  whether  legal  or  equitable, 
or  both,  when  they  all  arise  out  of  the  same  transaction,  or  transactions 
connected  with  the  same  subject  of  action.6  When  the  grievance  is 
common  to  all,  and  they  all  claim  the  same  relief,  the  objection  of  multi- 
fariousness cannot  be  entertained.7 

1  Leigh  ton  v.  Leighton,  1  P.  Wins.  G71.  *  Hays  v.  Ward,  4  J.  Cli.  R.  132.  Cham 

3  Trustees  of  Huntington  v.  Kicoll,  3  i>i<>n  v.  Brown,  6  id.  406. 

J.   R.  566,  589-595,  601,  602.     Keid  v.  6  Code,  §§  117,  118. 

Gifford,  1  Ilopk.  418-42d.  °  Id.  §  167. 

1  2  R.  S.  304,  §  6,  p.  309,  §§  36,  37, and  '  Reid  v.  Giftbrd,  1  Hopk.  419.     Conro 

notes  of  tho  revisers.     3  II.  S.  2d  ed.709.  v.  Port  Henry  Iron  Co.  12  Barb.  27,  59. 


828  Quia  Timet.  [Ch.  5 


SECTION  III. 

BILLS  QUIA  TIMET. 

A.  bill  Quia  Timet  is  a  preventive  remedy,  and  may  be  filed  by  a 
party  apprehending  a  future  inconvenience,  which  may  probably  happen, 
or  be  occasioned  by  the  neglect  or  culpable  act  of  another.  It  has  already 
been  alluded  to  under  other  heads,  and  will  be  mentioned  again  when  we 
come  to  treat  of  injunctions. 

The  name  of  the  bill  was  probably  borrowed  from  the  title  of  some 
ancient  writs  at  the  common  law.  Lord  Coke  says,  "  there  be  six  writs 
in  law  that  may  be  maintained,  quia  timet,  before  any  molestation,  dis- 
tress or  impleading  ;  as  1.  A  man  may  have  his  writ  of  mesne  (whereof 
Littleton  here  speaks)  before  he  be  distrained.  2.  A  warrantia  chartce, 
before  he  be  impleaded.  3.  A  rnonst raver unt,  before  any  distress  or 
vexation.  4.  An  audita  querela,  before  any  execution  sued.  5.  A  curia 
claudenda,  before  any  default  of  enclosure.  6.  A  ne  injuste  vexes, 
before  any  distress  or  molestation.  And  these  he  called  brevia  antici- 
pant ia.  writs  of  prevention."1  These  remedies  have  all  been  so  long 
antiquated,  that  but  few  traces  remain  of  their  former  existence.  In 
modern  times,  courts  of  equity  have  administered  relief  in  the  foregoing, 
and  many  other  cases,  and  arrested  the  commission  of  anticipated  injuries, 
by  the  bill  quia  timet.  The  foundation  of  the  jurisdiction  is  the  proba- 
bility of  irreparable  mischief,  the  inadequacy  of  a  pecuniary  compensation, 
and  the  prevention  of  a  multiplicity  of  suits.2 

The  application  of  this  remedy  to  rights  of  an  equitable  nature,  may 
be  illustrated  by  the  interference  of  the  court  in  favor  of  a  legatee,  whose 
legacy  is  payable  at  a  future  day,  and  compelling  the  executor  to  bring 
the  money  into  court,  or  to  give  security.3  In  an  early  case,  where  the 
legacy  was  not  payable  until  ten  years  after  the  death  of  the  testator. 
and  though  no  particular  reasons  were  assigned,  as  wasting  assets,  or  in- 
solvency of  the  defendant,  yet  the  executor  was  decreed  to  give  security, 
Dy  Sir  Thomas  Clarke,  master  of  the  rolls,  on  the  general  rule  of  the 
court.4 

To  render  an  application  to  equity  unnecessary,  and  to  afford  in  all 

1  Co.  Litt.  100,  a.  *  Lupton  v.  Lupton,  2  J.  Ch.  R.  62T.    1 

a  1  Font.  Eq.  B.  ],  ch.  1,  §  2,  uote.  Mad.  Ch.  Pr.  179. 

4  Ferrard  v.  Prentice,  Arabl.  273. 


Oh.  5.]  Quia  Timet.  326 

cases  adequate  security  for  the  faithful  administration  of  the  estates  of 
testators,  executors  are  required  in  many  of  the  states  to  give  bonds  like 
administrators  ;  and  the  revised  statutes  have  made  provision  for  requiring 
such  bonds  to  be  given,  through  the  intervention  of  the  surrogate,  in  all 
cases,  on  the  application  of  a  party  interested  in  the  estate,  when  the  ex- 
ecutor has  become  incompetent  by  law  to  serve  as  such,  or  his  circum- 
stances are  so  precarious  as  not  to  afford  adequate  security  for  his  due 
administration  of  the  estate,  or  he  has  removed,  or  is  about  to  remove 
from  the  state.1 

The  power  thus  granted  to  surrogates  does  not  supersede  the  jurisdiction 
of  a  court  of  equity  to  interpose  its  authority  to  protect  the  assets  from 
the  improvidence  of  the  executor  and  from  the  danger  of  loss,  resulting 
from  his  poverty,  incapacity,  or  any  other  cause  ;  where  not  only  the  right 
of  enjoyment  is  future  or  contingent,  but  in  other  cases.  On  one  occa- 
sion, Chancellor  Kent  said,  it  is  the  settled  principle  of  the  court  that  an 
executor  or  other  trustee,  who  mismanages  or  puts  the  assets  in  jeopardy 
by  his  insolvency,  either  existing  or  impending,  should  be  prevented  from 
further  interfering  with  the  estate,  and  that  the  funds  should  be  with- 
drawn from  his  hands.2  And  in  the  same  case,  where  one  of  three  exec- 
utors obtained  possession  of  a  bond  and  note  belonging  to  the  estate; 
from  the  custody  of  his  associates,  without  their  assent,  and  with  an  une- 
quivocal disposition  to  convert  them  to  his  own  use,  the  court  directed 
him  to  restore  the  bond  and  note  to  his  co-executors,  and  restrained  him 
fiom  acting  or  intermeddling  any  further  with  the  assets,  or  in  the  ad- 
ministration thereof  as  co-executor. 

The  cases  of  mo^.t  frequent  occurrence,  are  where  the  property  or  rights 
to  be  secured  are  of  an  equitable  nature  with  a  present  right  of  enjoy- 
ment, or  where  the  right  of  enjoyment  is  contingent  or  future.  The  ju- 
risdiction attaches  in  either  case.  A  few  more  examples  will  suffice  for 
illustration.  Thus,  where  the  testator  gave  a  legacy  to  his  child,  an  in- 
fant, payable  at  his  age  of  twenty-three  years,  and  made  his  wife  execu- 
trix and  residuary  legatee  ;  she  married  again  and  died,  whereupon  her 
husband  took  out  letters  de  bonis  non,  with  the  will  annexed  ;  upon  a 
bill  suggesting  insolvency,  the  second  husband  was  ordered  to  give  security 
i<>  pay  the  legacy  when  due.3  So  where  a  testator  by  will  gave  out  of  his 
personal  estate  several  legacies,  and  among  others  an  annuity  of  twenty 
pounds  a  year  to  J.  S.  for  life,  on  the  executors  threatening  to  defeat 

1  2  R.  S.  72,  §  18,  &c.  Mandcvillo  v.  3  Elmendorff  v.  Lansing,  4  J.  Ch.  R. 
Mandeville,  8  Paige,  475.    Wood  v.  Wood,    665. 

i  id.  299.  J  Rouse  v.  Noble,  2  Vera.  249.     Slan- 

ning  v.  Style,  8  P.  Wms.  336. 

Eq.  Jen.  42 


380  Quia  Timet  [Oh.  5. 

the  annuity,  the  court,  on  a  bill  by  the  annuitant,  ordered  a  sufficient  par* 
of  the  personal  estate  set  apart  and  assigned  to  a  trustee  in  trust  to  se- 
cure the  annuity.1  So  where  a  legacy  was  left  to  one,  to  be  paid  at 
twenty-four,  the  plaintiff  being  only  twelve  years  old,  the  father  filed  a 
bill  to  invest  the  legacy  in  the  funds,  and  so  it  was  decreed,  though  it 
was  ai  the  same  time  declared  that  the  plaintiff  was  not  entitled  to  the 
rnone-?.2 

If  personal  chattels  are  bequeathed  to  A.  for  life,  remainder  to  JB.,  the 
former  will  be  entitled  to  the  possession  of  the  goods  upon  signing  and 
delivering  to  the  executor  an  inventory  of  them,  admitting  their  receipt, 
expressing  that  he  is  entitled  to  them  for  life,  and  that  afterwards  they 
belong  to  the  person  in  remainder.3  The  old  practice  of  the  court  of 
chancery,  was  to  require  the  tenant  for  life  to  give  security  for  the  pro- 
tection of  the  remainderman  ;  but  such  security  is  not  now  required, 
except  a  case  of  danger  is  shown.4 

Where  there  is  a  charge  upon  a  personal  estate,  though  it  is  not  im- 
mediately payable,  yet  the  person  entitled  may  come  into  equity,  and 
pray  that  a  sufficient  sum  may  be  set  apart  to  answer  the  legacy  when 
it  shall  become  due.5  The  rule  is  otherwise  when  the  legacy  is  to  be 
raised  out  of  real  estate.6 

So  in  Johnson  v.  Mills,7  the  sum  of  two  thousand  pounds  was  left  to 
the  testator's  daughter  at  twenty-one  ;  and  in  default,  to  her  child  ;  and  if 
no  child,  to  one  Mills ;  a  bill  was  filed  to  secure  the  fund ;  which  was 
opposed  by  the  executrix,  on  the  ground  that  there  was  no  danger  or  in- 
solvency in  the  case  ;  but  Lord  Hardwicke,  said,  "  I  thought  nothing  was 
better  settled  than  what  is  now  endeavored  to  be  made  a  question  ;  that 
whenever  a  demand  was  made  out  of  assets  certainly  due,  but  payable  at 
a  future  time,  the  person  entitled  thereto  might  come  against  the  execu- 
tor, to  have  it  secured  for  his  benefit,  and  set  apart  in  the  mean  time, 
that  he  might  not  be  obliged  to  pursue  these  assets  through  several  hands. 
Nor  is  there  any  more  useful  part  of  the  jurisdiction  of  this  court  in  the 
administration  of  assets  ;  therefore  it  is  admitted  to  be  done  in  the  case 
of  a  legacy  always,  although  contingent  and  payable  at  a  future  day,  so 
that  it  might  fall  into  the  bulk  of  the  estate ;  and  this  is  done  to  secure 

1  Batten  v.  Earnley,  2  P.  'Wins.  163.        ler,  2  Paige,  123.    De  Peyster  v.  Clen- 

2  1  Mad.  Ch.  Pr.  179.  dining,  8  id.  295. 

8  Slatining  v.  Style,  3  P.  Wins.   336.        4  Bill  v.  Kinaston,  2  Atk.  82. 
Leeke  v.  Bennett,  1  Atk.  471.     Bill  v.        6  Phipps  v.  Annesley,  2  Atk.  58. 
Kinaston,  2  id.  82.    Covenlioven  v.  Shu-        6  Gawler  v.  Standerwicke,  2  Cox,  15. 

7  1  Ves.  sen..  282. 


Ch.  5.J  Quia  Timet.  331 

the  interest  of  every  party,  of  course,  as  a  common  equity,  without  ex- 
pecting any  suggestion  of  insolvency  of  the  executor,  or  of  -wasting  the 
assets." 

Again,  in  another  case,1  a  legacy  was  given  to  a  female  infant,  to  be 
paid  at  twenty-one  or  marriage,  with  interest  at  four  per  cent ;  but 
if  she  died  before,  it  was  directed  by  the  will  that  the  legacy  shoulJ 
sink  into  the  residue  ;  and  Lord  Thurlow  ordered  the  sum  of  five  thou- 
sand pounds,  with  interest  at  four  per  cent,  from  the  end  of  the  year 
after  the  testator's  death,  forthwith  to  be  laid  out  in  the  three  per  cents, 
in  the  name  of  the  accountant  general,  upon  the  trusts  and  subject  to 
the  contingencies  in  the  testator's  will ;  and  his  lordship  said  that  he  did 
not  see  any  distinction  as  to  the  legacy  being  contingent  or  merely  fu- 
ture. 

So,  where  A.  was  entitled  to  the  use  of  goods  and  a  library  for  life, 
with  remainder  to  the  plaintiff's  wife,  who  died,  the  plaintiff,  as  his  ad- 
ministrator, brought  a  bill  of  this  description  to  have  the  goods,  &c, 
secured  to  him  after  the  death  of  A.,  and  a  decree  was  made  accordingly.2 

So,  also,  Lord  Keeper  North  thought,  that  if  A.  is  bound  for  B.  and 
has  a  counter  bond  from  B.,  and  the  money  is  become  payable  on  the 
original  bond,  equity  will  compel  B.  to  pay  the  debt,  although  A.  is  not 
troubled  or  molested  for  the  debt,  since  it  is  unreasonable  that  a  man 
should  always  have  such  a  cloud  hanging  over  him.3  This  doctrine  has 
been  approved  in  this  state  ;  and  it  was  applied  by  Chancellor  Kent  to 
the  ordinary  cases  of  principal  and  surety.4 

It  is  now  the  settled  rule,  that  a  surety,  apprehending  danger  from 
the  delay  of  the  creditor,  may  resort  to  a  court  of  equity,  and  compel  the 
creditor  to  sue  the  principal  debtor,  though  probably  he  must  indemnify 
the  creditor  against  the  consequences  of  risk,  delay  and  expense.5  It  ia 
the  right  of  a  surety  to  call  upon  a  creditor  having  another  fund,  which 
the  surety  cannot  make  available,  and  to  require  him  to  resort  to  that 
fund  in  the  first  instance  and  exhaust  it.6  Lord  Eldon  in  one  case  said : 
We  have  gone  this  length,  that  if  a  creditor  has  a  right  to  go  upon  two 
funds,  and  another  creditor  of  the  same  debtor  upon  one,  the  first  shall 
take  payment  from  that  fund  to  which  he  can  resort  exclusively  ;  that  by 
diese  means  of  distribution,  both  may  be  paid.7     The  foregoing  cases  be- 

1  (irocn  v.  Pigot,  1  Bro.  C.  C.  103.  4  Hayes  v.   Ward,   4  J.   Ch.   B.    13a 

•Bracken  v.  Bentley,  1  Ch.  R.  110;     Champion  v.  Brown,  6  id.  406. 
6  C,  1  Eq.  Cas.  Abr.  78,  pi.  1.  i  Id.     King  v.  Baldwin,  2  id.  562. 

'  Ranelaugh  v.  Hayes,  1  Vern.  190.  *  Id. 

7  Kendall  ex  parte,  17  Ves.  520. 


332  Quia  Timet.  [Ch.  5 

long  to  other  heads  of  equity  jurisdiction,  as  well  as  the  one  we  are  no"v? 
considering. 

'l1here  is  a  distinction  between  a  bequest  of  specific  chattels,  and  the 
bequest  of  a  general  residue.  We  have  already  stated  the  rule  in  the 
former  case.  In  the  latter  case  the  rule  is,  that  where  there  is  a  general 
bequest  of  a  residue  for  life,  with  remainder  over,  the  whole  must  be  sold 
and  converted  into  money  by  the  executor,  and  the  proceeds  must  be  in- 
vested in  permanent  securities,  and  the  interest  or  income  only  is  paid 
to  the  legatee  for  life.1  Though  the  legacy  be  of  articles  which  must 
necessarily  be  consumed  in  the  using,  as  of  hay,  grain,  &c,  or  be  of  ar- 
ticles capable  of  a  separate  use  for  life,  or  of  both  together,  the  rule  is 
the  same,  and  the  first  legatee  is  not  entitled  to  the  use  of  the  fund,  in 
the  mean  time,  without  giving  ample  securit}7  for  the  return  of  the  prin 
cipal  at  the  termination  of  the  particular  estate  therein.  In  general, 
however,  the  executor,  which  is,  perhaps,  the  preferable  course,  retains 
the  fund,  and  pays  over  the  income  as  it  accrues  to  the  first  legatee.2 

In  all  cases  where  property  is  held  by  one  party  in  trust  for  others, 
and  there  is  danger  of  its  being  squandered  or  diverted  to  the  prejudice 
of  any  one  having  a  present  or  future,  a  vested  or  contingent  interest  in 
it,  the  court,  on  a  bill  for  that  purpose,  will  appoint  a  receiver,  and  direct 
the  property  to  be  vested  in  him  for  the  benefit  of  all  concerned.  "  This 
power,"  said  Lord  Hardwicke,  on  one  occasion,3  "  is  a  discretionary  power 
exercised  by  a  court  of  equity  with  as  great  utility  to  the  parties  as  any 
sort  of  authority  that  belongs  to  the  court,  and'  is  provisional  only  for  the 
more  speedy  getting  in  of  a  party's  estate,  and  securing  it  for  the  bene- 
fit of  such  person  who  shall  appear  to  be  entitled,  and  does  not  at  all  affect 
the  right."  At  common  lawT,  and  independently  of  statute  regulations, 
a  receiver  is  treated  as  an  officer  of  the  court,  subject  to  its  orders,  and 
entitled  to  its  protection.  This  appointment  is  not  for  the  benefit  of  any 
particular  party,  but  of  all  who  are  or  may  become  interested  in  the  fund.4 
The  money  in  his  hands  is  in  the  custody  of  the  law  for  whoever  can 
make  out  a  title  to  it.  The  order  for  the  appointment  of  a  receiver,  fol- 
lowed up  by  giving  the  requisite  security  in  equity,  vested  the  property 
in  the  receiver,  without  any  assignment  from  its  former  owner.5  At  law, 
an  ordinary  receiver  was  not  considered  as  having  the  legal  title,  so  as  tc 


1  Covenlioven  v.  Shuler,  2  Paige,  122.        4  Green  v.  Bostwick,  1  Sand.  Ch.  it 

)lark  v.  Clark,  8  id.  160.  1S5. 
*  Id.  5  Mann  v.  Pentz,  2  Sand.  Cb.  R.  257 

-  Skip  v.  Ilarwood,  3  Atk.  564.  Wilson  v.  Allc  i,  6  Barb.  5-12. 


Ch.  5.J  Quia  Timet.  333 

authorize  him  to  institute  a  suit  in  his  own  name,  for  any  debt  or  demand 
transferred  to  him,  or  to  the  possession  or  control  of  which  he  was  enti- 
tled under  the  order  of  the  court.1  He  had  the  mere  custody  or  charge 
of  the  property,  under  the  direction  of  the  court,  and  could  use  the  name 
of  the  person  of  whose  estate  he  was  receiver,  in  prosecuting  actions  to 
reduce  the  property  to  possession. 

The  frequent  necessity  of  resorting  to  the  appointment  of  receivers,  in 
winding  up  the  estates  of  insolvent  debtors,  sued  by  creditors'  bills,  and 
in  a  great  variety  of  other  cases,  led  in  New- York  to  legislative  provi- 
sions, essentially  altering  the  common  law  in  this  respect.  Thus,  by  the 
act  entitled  "  An  act  in  relation  to  the  powers  of  receivers  and  committees 
of  lunatics  and  habitual  drunkards,"2  a  receiver,  appointed  by  virtue  of 
an  order  or  decree  of  the  court  of  chancery,  was  empowered  to  take  and 
hold  real  estate  upon  such  trusts  and  for  such  purposes  as  the  court  might 
direct,  subject  to  its  further  order  or  direction,  from  time  to  time,  in  re- 
lation to  its  disposition.  And  the  second  section  authorized  receivers  and 
committees  of  lunatics  and  habitual  drunkards,  appointed  by  any  order  or 
decree  of  the  court  of  chancery,  to  sue,  in  their  own  names,  for  any  debt, 
claim  or  demand  transferred  to  them,  or  to  the  possession  and  control  of 
which  they  are  entitled  as  such  receiver  or  committee  ;  and  when  ordered 
or  authorized  to  sell  such  demands,  the  purchaser  thereof  was  authorized 
by  the  same  section  to  sue  and  recover  therefor,  in  his  own  name,  he  giv- 
ing such  security  for  costs  to  the  defendant  as  the  court  in  which  such 
suit  is  brought  might  direct.  The  chancellor,  in  Wilson  v.  Wilson,  already 
cited,  did  not  consider  this  act  broad  enough  to  transfer  the  title  of  real 
estate  to  the  receiver,  by  the  mere  order  of  the  court,  and  without  an  ac- 
tual conveyance  from  the  party  to  the  suit  in  which  such  legal  title  is 
vested.  And  hence  it  was  usual  to  direct  an  assignment  of  his  real  es- 
tate by  the  debtor  to  the  receiver.  The  New-York  code  of  procedure, 
adopted  in  1848,  and  successively  afterwards  amended,  in  several  respects, 
seems  to  have  placed  real  property  and  personal  property,  with  reference 
to  this  question,  on  the  same  footing.3  If  one  passes,  by  force  of  the 
order  of  the  court,  and  becomes  vested  in  the  receiver,  without  an  as- 

1  "Wilson  v.  Allen,  G  I*irb.  545.     Wil-  receiver,  would  not  pass  the  title  to  the 

Bon  v.  Wilson,  1    Barb.    Ch.  Kep.    594.  latter,  (see  Cuhatauque  Co.  Bank  v.  White. 

Chautauque   County   Bank   v.  White,  6  6  Barb.  589,)  was  expressly  overthrown 

Barb.  589  ;  S.  C.  in  court  of  appeals,  4  by  the  court  of  appeals  in  the  r-ame  case 

Sehl.     Verplank  v.  The  Mercantile  Ins.  on  appeal.     See  4  Seld. 
Co.  2  Paige,  452.  2  L.  of  1845,  p.  90,  ch.  112. 

The  doctrine  of  the  supreme  court  in        3  Code  of  Procedure  of  1851:  compare 

the  third  district,  that  an  assignment  by  §§  402.  463,  404. 
the  debtor  of  his   real   property  to  the 


334  Quia  Timet.  [Oh.  b 

signment  by  the  debtor,  as  it  has  been  shown  that  personal  pro]  erty  does, 
the  other,  since  the  adoption  of  the  code,  follows  the  same  rule.1  But 
whether  this  be  so  or  not,  it  is  well  settled  that  the  title  to  real  property 
will  pass  by  an  assignment  by  the  debtor  to  the  receiver,  made  in  pursu- 
ance of  an  order  of  the  court.2 

The  appointment  of  a  receiver  does  not  operate  in  such  a  manner  as  to 
derange  the  priority  of  legal  or  equitable  liens  upon  the  property.  As 
the  object  of  the  appointment  of  a  receiver  is  to  preserve  the  property 
for  the  person  or  persons  entitled  to  it,  the  court  will  ultimately  make 
such  disposition  of  it  as  to  preserve  the  legal  as  well  as  equitable  rights 
of  every  claimant.  Before  the  statute  of  1845,  the  appointment  of  a  re- 
ceiver, in  a  creditor's  suit,  was  treated  as  an  equitable  sequestration  of  the 
property  of  the  defendant.3  And  even  if  the  tenant  of  real  estate  was 
not  a  party  to  the  bill,  he  could  be  made  to  attorn  to  the  receiver,  and  pay 
the  rents  and  profits  to  him.4  Much  more  could  he  bo  so  required,  when 
he  was  made  a  party. 

If  a  receiver  takes  possession  of  property  under  the  express  direction 
of  the  court,  though  there  be  conflicting  claims  to  the  property,  the  court 
will  not  permit  its  officer  to  be  harassed  by  a  suit  for  obeying  its  order.5 
It  will  enjoin  any  suit  brought  against  the  receiver,  and  administer 
justice  to  the  parties  according  to  its  own  notions  of  equity. 

But  if  the  receiver,  without  any  direction  to  that  effect  from  the  court, 
forcibly  take  goods  belonging  to  others  exclusively,  under  pretense  that 
they  are  goods  belonging  to  the  party  for  whom  he  was  appointed  receiver, 
the  court  may,  in  its  discretion,  either  take  to  itself  the  cognizance  of  the 
complaint,  and  do  justice  between  its  officers  and  the  parties  aggrieved,  or 
it  may  permit  the  latter  to  bring  a  suit  at  law  for  the  alleged  injury.6 
This  is  upon  the  principle  that  the  possession  of  the  receiver,  when  right- 
ful, is  the  possession  of  the  court ;  and  no  one  can  disturb  it  but  through 
an  application  to  the  court.  The  acts  of  the  receiver,  in  the  administra- 
tion of  the  estate,  are  the  acts  of  the  court ;  and  the  court  may,  therefore, 
if  it  pleases,  prevent  any  other  jurisdiction  from  questioning  those  acts, 
because,  strictly  speaking,  that  would  be  to  question  the  court's  adminis- 

1  See  opinion  in  court  of  appeals,  Porter        3  Albany  City  Bank  v.  Sckernierkorn, 

r.  Williams,  decided  Dec.  T.  1853 ;  S.  0.,  9  Paige,  372,  377. 

5  Howard's  Pr.  R.  441.     Chautauque  Co.        4  Id.     Sea  Ins.  Co.  v.  Stebbins,  8  Paige, 

Bank  v.  White,  in  court  of  appeals,  re-  565. 
versing  S.  C,  6  Barb.  589.  6  Parker  v.  Browning,  8  Paige,  389. 

1  Id.  6  Id.  390.     Aston  v.  Heron,  2  Myl.  & 

Keene,  390. 


Ch.  5.]  Quia  Timet.  335 

trative  proceedings.  But  the  court  may  leave  the  acts  of  the  receiver  to 
be  questioned  elsewhere,  for  the  purpose  of  trying  the  right.1 

The  duties  which  devolve  on  a  receiver  do  not,  in  any  case,  make  it 
necessary  for  him  to  put  himself  in  a  situation  in  which  he  will  not  be 
entitled  to  the  full  protection  of  the  court.  He  is  under  no  obligation  to 
attempt  to  take  property  out  of  the  possession  of  a  third  person,  or  even 
of  the  defendant,  by  force,  and  without  an  express  order  of  the  court 
directing  him  to  do  so.2 

In  New-York  the  practice  was  well  settled,  that  where  the  defendant 
was  directed  to  deliver  over  his  property  to  the  receiver  under  the  direc- 
tion of  a  master,  it  was  customary  for  the  receiver  to  call  upon  the  master 
to  decide,  upon  the  examination  of  the  defendant,  and  other  evidence,  if 
any  before  him,  what  property,  legally  or  equitably  belonging  to  the  de- 
fendant, and  to  which  the  receiver  was  entitled  under  the  order  of  the 
court,  was  in  the  possession  of  the  defendant  or  under  his  power  and 
control.  And  it  was  the  duty  of  the  master  to  direct  the  defendant  to 
deliver  over  to  the  receiver  the  actual  possession  of  all  such  property,  in 
such  manner,  and  within  such  time,  as  the  master  might  think  reasonable. 
Where  such  direction  was  given,  the  defendant,  if  he  was  dissatisfied 
with  the  decision  of  the  master,  could  apply  to  the  court  to  review  the 
same  ;  and  he  could,  if  the  same  was  confirmed,  be  compelled,  by  process 
of  contempt,  to  comply  with  that  decision.  * 

If  the  property  was  in  the  possession  of  a  third  person,  claiming  a  right 
to  retain  it,  the  receiver  could  proceed  by  suit  against  such  person  in  the 
ordinary  way,  and  thus  try  the  right,  or  the  complainant  could  amend  his 
bill,  making  such  third  person  a  party,  and  have  the  receivership  ex- 
tended to  the  property  in  his  hands  ;  so  that  the  order  for  the  delivery 
O'  the  property  might  be  binding  upon  him,  and  be  enforced,  if  necessary, 
by  process  of  contempt.3 

Where  the  property  was  legally  and  pfloperly  in  the  possession  of  the 
receiver,  it  was  the  duty  of  the  court  to  protect  that  possession,  not  only 
against  acts  of  violence,  but  also  against  suits  at  law;  so  that  a  third 
1  m.  claiming  the  same,  might  be  compelled  to  come  in  and  ask  to  be 
examined  pro  interesse  suo,  if  he  wished  to  test  the  justice  of  such 
claim.  But  where  the  property  was  in  the  possession  of  a  third  person, 
under  a  claim  of  title,  the  court  would  not  protect  the  officer,  who  attempt- 
ed by  violence  to  obtain  possession,  any  further  than  the  law  would  pro- 

1  Parker   v.   Browning,  8  Taige,  390.        a  Parker  v.  Browning,  8  Paige,  390. 
Aston  v.  Ueron,  2  Myl.  &  K.  390.  *  Parker  v.  Browning,  8  Paige,  £91. 


336  Quia  Timet.  [Ch.  b 

tect  him  ;  his  right  to  take  possession  of  property,  of  ■which  he  had  been 
appointed  receiver,  being  unquestioned." 

These  principles  remain  the  same  at  this  day,  though  the  duties,  for- 
merly devolving  upon  a  master,  are  now  discharged  by  the  court,  or  a 
referee.  The  act  of  1845,  already  referred  to,  has  enlarged  the  powers 
of  the  receiver-  and  the  abrogation  of  the  court  of  chancery  by  the 
present  constitution,  and  the  vesting  of  law  and  equity  jurisdiction  in 
the  same  court,  have  produced  some  change  in  the  mode  of  procedure, 
not  necessary  to  be  discussed  in  this  treatise,  and  which  properly  belongs 
to  books  of  practice. 

The  appointment  of  a  receiver  is,  in  general,  one  of  the  objects  of  a 
bill  quia  timet.  The  cases  to  which  it  is  applied,  and  the  nature  of  the 
relief,  show  that  it  belongs  to  that  form  of  remedy.  Where  an  executor 
or  other  trustee  is  charged  with  abusing  his  trust,  a  receiver  may  be 
appointed.2  A  creditor  filing  a  bill  against  an  executor  cannot  make  a 
debtor  of  the  testator  a  party.  If  there  is  a  suspicion  that  the  execute  r 
is  insolvent,  and  a  proper  case  in  other  respects  is  made  out,  the  court 
will  appoint  a  receiver,  and  restrain  the  executor  from  intermeddling 
with  the  estate.3  And  if  it  be  necessary  to  bring  actions  at  law  to 
recover  part  of  the  effects,  it  must  be  in  the  name  of  the  executor,  and 
the  court  will  compel  him  to  allow  his  name  to  be  used.4  Whether  the 
act  of  1845,5  in  conjunction  with  the  provisions  of  the  code,  will  author- 
ize the  receiver  of  an  executor  to  bring  actions  in  his  own  name  to  recover 
debts  due  to  the  estate,  has  not  yet  been  decided.  It  would  seem  that 
a  person  expressly  authorized  to  sue  in  his  own  name  by  statute,  may 
do  so,  whether  the  party  he  represents  had  a  cause  of  action  in  his  own 
right  or  in  auter  droit.  But  this  question  belongs  rather  to  practice 
and  pleading,  than  to  jurisdiction. 

There  are  numerous  other  ceases  where  the  relief  is  granted  on  the 
principle  of  quia  timet,  which  have  already  been  considered  under 
other  heads,  or  which  will  appropriately  fall  under  the  head  of  injunc- 
tion.    Creditors'  bills  are  in  part  founded  upon  this  principle. 

The  question  whether  a  receiver  merely  stands  in  the  shoes  of  the  party 
whose  estate  is  entrusted  to  him,  or  whether  he  represents  the  creditors, 
and  other  persons  interested  therein,  has  been  settled  in  this  state  in 

1  Parker  v.  Browning,  8  Paige,  391.  *  Id.     S.  C,  4  Bro.  C.  C.  277. 

1  Boyd  v.  Murray,  3  J  Ch.  Pv.  48.  6  L.  of  1845,  p.  90.     Code,  §§  111,  112 

*  Utterson  v.  Main;,  2  Ves.  jr.  95,  98.      113. 


Ch.  5.]  Marshaling  Securities.  337 

favor  of  the  latter  position.1  Hence,  it  is  competent  for  him,  in  that 
character,  to  maintain  an  action  to  set  aside  a  fraudulent  assignment, 
made  by  the  party  whose  estate  he  administers.  An  executor  or  admin- 
istrator, under  the  Revised  Statutes,  represents  other  interests  than 
those  of  his  testator  or  intestate,  and  can  impeach  the  acts  of  the  former, 
when  the  claims  of  creditors  make  it  necessary.2  This  is  contrary  to  the 
earlier  cases,  prior  to  1830,  which  were  decided  on  the  principles  of  the 
common  law.3 

The  foregoing  cases  and  remarks  are  sufficient  to  illustrate  the  gene- 
ral principles  which  govern  in  cases  of  Bills  of  Interpleader,  Bills  of 
Peace,  and  Bills  Quia  Timet.  A  more  extended  discussion  would  lead 
to  a  repetition  of  much  that  is  more  appropriate  to  the  head  of  in- 
junction. 


SECTION  IV. 

OF  BILLS  TO  MARSHAL  SECURITIES. 

In  considering  the  doctrine  of  apportionment  and  contribution,  w*e 
have  already  had  occasion  to  bring  to  the  notice  of  the  reader,  principles 
analogous  to  that  of  the  subject  of  this  section.  "We  shall  also,  in  a  sub- 
sequent chapter,  be  led  to  discuss,  at  some  length,  the  principles  on 
which  the  assets  of  deceased  persons  are  marshaled,  and  which  bear  a 
close  resemblance  to  those  which  prevail  in  marshaling  securities  where 
the  parties  are  still  living.4  The  doctrine  in  cases  of  this  kind,  as  ex- 
pounded by  Lord  Hardwicke,  Lord  Eldon,  Chancellor  Kent  and  others,  is, 
that  where  there  are  several  creditors,  having  a  common  debtor,  who  has 
several  funds,  all  of  which  can  be  reached  by  one  creditor,  and  only  a 
part  of  the  funds  by  the  others,  the  former  shall  take  payment  out  of 
the  fund  to  which  he  can  resort  exclusively,  so  that  all  may  be  paid.8 

'Porter  v.  Williams,  5  How.  Pr.  R.  "  Ex  parte  Kendall,  17  Yes.  520.     Don 

441 ;  S.  C.  on  appeal,  4  Seld.     Wilson  v.  v.  Shaw,  4  J.  Ch.  R.  17,  20.     Aldrich  v. 

Allen,  6  Barh.  544,  545.  Cooper,   8  Ves.  382.     White's  Leading 

s  Dox  v.  Backenstose,  12  Wend.  542.  Cas.  in  Eq.  vol.  2,  part  1,  pp.  175,  192  to 

Bahcock  v.  Booth,  2  Hill,  181.    Brownell  237,  notes  by  American  editor.     Checs- 

v.  Curtis,  10  Paige,  210,  218.     2  Pv.  S.  87,  borough  v.  Millard,  1  J.  Ch.  R.  413.    La- 

§  28.     Id.  4-19,  §  17.  noy  v.  The  Duke  of  At  hoi,  2  Atk.  446. 

1  Osborne  v.  Moss,  7  J.  R.  161.  The  N.  Y.  Ferry  Co.  v.  The  N.  J.  Co. 

4  Seo  post,  Cikp.  VII,  Sec.  14.  Hopk.  460.     Evertson  v.  Booth,  19  J.  R. 

Eg.  Jur.  43 


338  Marshaling  Securities.  [Oh.  t» 

This  principle  applies  to  mortgages,  judgments,  or  any  otker  security 
which  creates  a  lien  in  favor  of  tke  creditor  ;  and  it  rests  upon  tke 
natural  equity,  tkat  one  man  shall  not  so  use  the  right  which  he  enjoys, 
as  to  prejudice,  unnecessarily,  the  rights  or  remedies  of  others.  The 
law  does  no  injustice  to  the  creditor,  whose  lien  is  the  most  extensive,  if 
it  prevents  him  from  wasting  or  sacrificing  the  fund.  It  permits  him  to 
be  paid  in  full,  but  out  of  such  portions  of  the  fund  that  will  work  the 
least  inconvenience  to  the  creditors,  whose  liens  are  confined  to  a  part  of 
it  only.  It  is  obvious  that  in  this  way  no  wrong  is  done  to  the  creditor 
who  could  reach  all  the  funds,  and  the  common  debtor  receives  a  benefit 
by  the  discharge  of  a  larger  portion  of  his  debts,  than  if  the  funds 
were  needlessly  exhausted  by  a  single  creditor. 

The  relief  in  these  cases  is  never  granted,  except  where  the  plaintiff 
and  the  party  against  whom  it  is  prayed,  are  creditors  of  a  common 
debtor  ;  and  the  relief  can  be  granted  without  prejudice  to  the  latter.  The 
principle  is  not  applicable,  where  the  first  creditor  has  a  judgment  or 
other  security  against  two  persons,  and  the  second  creditor  has  a  like 
judgment  or  other  lien  against  one  of  the  same  persons,  unless  it  be 
averred  and  proved  that  the  latter  alone  is  bound  to  pay  both  debts  ;  for, 
in  that  case,  he  becomes  the  common  debtor.  This  is  illustrated  by  tho 
case  of  Dorr  v.  Shaw,  already  cited.  In  that  case,  the  defendant  held 
a  judgment  against  A.  and  B.,  binding  upon  seventy-two  acres  of  land 
owned  by  A.,  and  thirty  acres  of  land  owned  by  B.  The  plaintiff  was 
the  owner  of  a  younger  judgment  against  A.  only,  and  binding  on  the 
seventy-two  acres  alone.  The  defendant,  as  owner  of  the  elder  judgment, 
purchased  in  the  thirty  acres,  on  which  his  judgment  originally  attached, 
in  part  payment  of  his  judgment,  and  the  plaintiff,  as  owner  of 
the  junior  judgment,  purchased  in  the  seventy-two  acres,  bound  by 
his  judgment.  The  defendant  then  pursued  his  execution,  to  collect 
the  balance  of  the  elder  judgment,  against  the  seventy-two  acres.  The 
plaintiff  sought  by  his  bill  to  prevent  this,  by  requiring  the  defendant 
to  be  satisfied  by  his  sale  of  the  thirty  acres,  already  purchased  by 
him,  averring  in  his  bill  that  the  said  thirty  acres  were  worth  more  than 
enough  to  pay  the  defendant's  judgment,  though  bid  off  by  the  defend* 
ant  for  a  less  sum.  The  chancellor  held  that  relief  could  not  be  granted, 
inasmuch  as  it  did  not  appear  which  of  the  debtors  ought  to  pay  the 
debt.     Treating  both  A.  and  B.  as  original  debtors,  there  was  no  reason 

486.    Besley  v.  Lawrence,  11  Paige,  581.    Doyle,  1  Paige,  558.     Wilder  v.  Keoler, 
Hunt  v.  Townsend,  4  Sand.  Ch.  R.  510.     3  id.  167. 
Averill  v.  Loucks,  6  Barb.  470.     Purdy  v. 


Ch.  5.]  Marshaling  Securities.  339 

why  the  court  should  interfere,  and  charge  the  debt  upon  one  of  them 
instead  of  the  other.  They  were  not  parties  to  the  suit.1  If,  in  truth, 
the  thirty  acres  were  worth  enough  to  pay  the  elder  judgment,  the  plain- 
tiff should  have  attended  the  sale,  and  bid  the  property  up  to  that  amount, 
and  thus  relieved  the  seventy-two  acres  from  the  lien  of  that  judgment 
Having  ommitted  to  avail  himself  of  that  remedy,  he  had  no  equity  to 
compel  the  elder  judgment  creditor  to  forego  his  legal  advantage,  aris- 
ing from  the  priority  of  his  lien  on  the  seventy-two  acres.  The  latter 
was  entitled  to  the  payment  of  his  judgment  in  full. 

Marshaling  securities  will  not  be  enforced  to  the  prejudice  of  a  third 
party.  Thus,  where  a  person  being  seised  of  several  estates,  and  indebted 
by  judgments,  settled  one  of  the  estates  for  valuable  consideration,  with 
a  covenant  against  incumbrances,  and  subsequently  acknowledged  other 
judgments,  it  was  insisted  by  the  subsequent  judgment  creditors  that  as 
they  only  affected  the  unsettled  estates,  on  the  principle  in  Aldrich  v. 
Cooper,  they,  having  only  one  fund,  had  a  right  to  compel  the  prior  judg- 
ment creditors,  who  had  two  funds,  the  settled  and  the  unsettled  estates,  to 
resort  to  the  former  ;  or  at  any  rate,  that  the  settled  estates  ought  to  con- 
tribute to  the  payment  of  the  prior  judgments.  But  Sugden,  lord  chan- 
cellor, held,  that  the  subsequent  judgment  creditors  had  no  equity  to* 
compel  the  prior  judgment  creditors  to  resort  to  the  settled  estates;  on 
the  contrary,  that  the  prior  judgments  should  be  thrown  altogether  on 
the  unsettled  estates,  and  that  the  subsequent  judgment  creditors  had  no 
right  to  make  the  settled  estate  contribute ;  observing,  after  a  close 
examination  of  Aldrich  v.  Cooper,  that,  upon  the  whole  of  the  case,  Lord 
Eldon,  in  the  application  of  the  principle,  carefully  avoided  dealing  with 
the  rights  of  third  persons  intervening.2 

Where  a  creditor  buys  in  an  incumbrance  at  an  under  value,  he  is  en- 
titled to  be  allowed  the  whole  amount,  unless  he  be  a  trustee,  agent,  &c., 
or  stand  in  confidential  relations  to  the  party,  in  which  latter  case,  he  is 
allowed  for  it  no  more  than  he  actually  paid  as  against  his  cestui  que 
trust,  principal,  &c.3 

Enough  has  been  said  to  illustrate  the  general  principles  on  which  secu- 
rities are  marshaled  by  the  court.  It  is  truly  one  of  the  remedies  to  pre- 
vent fraud.  Examples  of  the  doctrine  will  be  found  under  other  heads, 
which  it  is  unnecessary  to  repeat. 

1  Dorr  v.  Shaw,  4  J.  Ch.  R.  17.  Ex  Barnes  v.  Racster,  1  Young  &  Col.  C.  0. 
parto  Kendall,  17  Ves.  520.    ITawley  v.    401. 

Manciu-s  7  J.  Ch.  R.  184.  3  Monet  v.  Parke,  2  Atk.  54.   Williams 

2  Averallv.Wade.L.&G.t.  Sugden  252.  v.  Springfield,  1  Vern.  476.  Philips  v. 
"White's  Eq.  Cas.  vol.  2,  B.  1,  p.  192,  notes.    Vaughn,  id.  336. 


(CHAPTER   VI. 


OF    INJUNCTIONS. 


SECTION  f 


GENERAL    VIEW    OF    THE    SUBJECT. 


AN  injunction  is  a  mandate  in  writing,  issued  by  a  court  or  officer  of 
competent  jurisdiction,  either  under  the  seal  of  the  court,  or  by  order, 
commanding  the  party  to  'whom  it  is  addressed  to  do,  or  to  refrain  from 
doing,  some  particular  thing,  as  is  required  in  such  writ  or  order.  Ac-* 
cording  to  the  former  practice  of  the  court  of  chancery  of  this  state,  an 
injunction  usually  issued  under  the  seal  of  the  court,  in  pursuance  of  an 
order  for  that  purpose,  granted  by  the  chancellor,  a  vice  chancellor,  or 
an  injunction  master.  But  there  were  numerous  cases  in  which  the  court 
expressed  its  commands,  in  the  shape  merely  of  an  order  in  the  nature  of 
an  injunction.  And  the  court  treated  the  negligence  or  disobedience  of 
its  order  as  a  contempt,  and  enforced  the  performance  of  it  by  imprison- 
ment. The  object  sought  by  an  injunction  was  as  well  attained  by  the 
order  as  by  the  writ  of  injunction.1 

Injunctions,  with  reference  to  their  duration,  are  of  two  kinds,  preZifUr 
inary  and  final.  The  first  are  granted  before,  and  the  last  after  the 
final  decree  or  judgment  in  the  cause.2  With  reference  to  their  objects, 
they  are  of  two  kinds,  commanding  a  party  to  do,  or  to  refrain  from  doing, 
a  particular  thing. 

The  granting  of  a  preliminary  injunction  rests  in  the  discretion  of  the 
court,3  There  are  many  cases  in  which  the  complainant  may  be  entitled 
to  a  perpetual  injunction  on  the  hearing,  when  it  would  manifestly  b6 

1  Eden  on  Injunc.  ch.  14.  2  R.  S.  173.  *  Potter  v.  Chapman,  Ainbl.  99.  Rob- 
Chancery  Rules,  30,  31.  erts  v.  Anderson,  2  J.  Ch.  R.  202. 

•  1  Barb.  Ch.  Pr.  608. 

341 


342  Of  Injunction.  [Ch.  6 

improper  to  grant  an  injunction  in  limine.  The  final  injunction  is  in 
many  cases  matter  of  strict  right,  and  granted  as  a  necessary  consequence 
of  the  decree  made  in  the  cause.1  A  preliminary  injunction  should  not 
be  granted  before  answer,  unless  it  is  necessary  to  protect  some  interest 
or  right,  which  may  be  injured  or  endangered  by  the  defendants'  proceed- 
ings in  the  mean  time.2 

An  injunction  is  never  granted  against  persons  who  are  not  parties  to 
the  suit.3  And  it  should  only  be  granted  where  the  rights  sought  to  be 
protected  are  clear,  or  at  least  free  from  reasonable  doubt.4  And  a  pre- 
liminary injunction  should  never  be  granted  unless  specifically  prayed  for 
in  the  bill.5  In  this  state,  the  pleading  on  the  part  of  the  plaintiff  is 
called  a  complaint  instead  of  a  bill  under  the  old  pratice.  But  the  com- 
plaint, as  has  been  before  stated,  must  contain,  like  the  bill,  a  statement 
of  the  facts  which  constitute  the  cause  of  action,  and  the  appropriate 
prayer  or  demand  for  the  relief  sought.  The  rule  with  respect  to  the  ne- 
cessity of  filing  the  bill,  is  probably  applicable  to  the  complaint,  which  is 
substituted  for  it. 

When  the  court  obtains  jurisdiction  of  the  cause  by  bill  or  complaint, 
an  injunction  should  not  be  issued  until  the  bill  is  filed.6  If  the  injunc 
tion  be  granted  pending  the  action,  upon  a  petition  for  that  purpose,  the 
filing  of  the  petition  before  granting  the  injunction  is  a  substantial  compli- 
ance with  the  act.7 

According  to  the  English  practice,  a  distinction  is  made  between  com- 
mon and  special  injunctions.  An  injunction  which  issues  for  the  default 
of  the  defendant,  either  in  appearing  or  answering,  is  called  a  common 
injunction.  Special  injunctions  are  such  as  are  granted  only  upon  special 
application  to  the  court.  This  distinction  is  inapplicable  to  our  practice, 
as  all  injunctions  are  granted  upon  special  application  to  the  court,  or  to 
a  judge  ;  and  these,  with  respect  to  preliminary  injunctions,  are  granted 
either  ex  parte  on  filing  the  bill  or  petition,  or  upon  notice,  where  the 
practice  requires  it,  or  it  is  ordered  by  the  court  or  judge. 

in  New-York,  the  writ  of  injunction,  as  a  provisional  remedy,  is  abol- 
ished by  the  Code  of  Procedure,  and  an  injunction  by  order  substituted.8 
The  order  may  be  made  by  the  court  in  which  the  action  is  brought,  or 


1  N.  Y.  Printing  and  Dyeing  Establish-  4  Snowden  v.  Noah,  Hopk.  347. 

ment  v.  Fitch,  1  Paige,  98.    Ogden  v.  5  Walker  v.  Devereaux,  4  Paige,  229. 

Kip,  6  J.  Ch.  R.  60.  6  2  E.  S.  179,  §  71. 

J  Osborne  v.  Taylor,  5  Paige,  515.  7  In  the  matter  of  Heraiup,  2  Paifffl. 

'  Fellows  v.  Fellows,  4  J.  Ch.  R.  25.  316. 

Waller  v.  Harris,  7  Paige,  167.  8  Code,  §  218. 


<}h.  b'.J  Of  Injunction's.  313 

by  a  judge  tLereof,  or  by  a  county  judge,  and  when  made  by  a  judge,  may 
be  enfaced  as  the  order  of  the  court,1 

The  code  defines  in  what  cases  a  preliminary  injunction  may  be  grant- 
ed. It  makes  no  provision  in  relation  to  final  injunctions,  which  are  con- 
sequently governed  by  the  former  practice,  except  as  modified  by  other 
parts  of  the  code. 

The  provision  in  relation  to  preliminary  or  temporary  injunctions  is 
thus  :  "  Where  it  shall  appear  by  the  complaint  that  the  plaintiff  is  enti- 
tled to  the  relief  demanded,  and  such  relief,  or  any  part  thereof,  consists 
in  restraining  the  commission  or  continuance  of  some  act,  the  commission 
or  continuance  of  which,  during  the  litigation,  would  produce  injury  to  the 
plaintiff;  or  when,  during  the  litigation,  it  shall  appear  that  the  defend 
ant  is  doing,  or  threatens,  or  is  about  to  do,  or  procuring  or  suffering 
some  act  to  be  done  in  violation  of  the  plaintiff's  rights,  respecting  the 
subject  of  the  action,  and  tending  to  render  the  judgment  ineffectual,  a 
temporary  injunction  may  be  granted  to  restrain  such  act.  And  where, 
during  the  pendency  of  an  action,  it  shall  appear,  by  affidavit,  that  the 
defendant  threatens,  or  is  about  to  remove,  or  dispose  of  his  property, 
with  intent  to  defraud  his  creditors,  a  temporary  injunction  mav  be 
granted  to  restrain  such  removal  or  disposition."2  A  subsequent  section3 
provides  that  an  injunction  may  be  granted  at  the  time  of  commencing 
the  action,  or  at  any  time  afterwards,  before  judgment,  upon  its  appear- 
ing satisfactorily  to  the  court  or  judge,  by  the  affidavit  of  the  plaintiff,  or 
of  any  other  person,  that  sufficient  grounds  exist  therefor.  A  copy  of  the 
affidavit  must  be  served  with  the  injunction.  Other  sections  regulate  the 
practice  as  to  notice,  security,  and  motions  to  vacate  injunctions. 

If  the  cause  for  granting  the  injunction  exist  at  the  time  of  filing  the 
complaint,  an  injunction  should  not  be  granted  unless  a  demand  for  an 
injunction  is  contained  therein  ;  if  the  grounds  for  issuing  it  arose  after 
filing  the  complaint,  the  application  for  it  may  be  made  upon  affidavit 
disclosing  such  grounds.4  The  complaint  may  be  so  drawn,  that  an  affi- 
davit verifying  the  same  will  entitle  the  party  to  an  injunction.5  But  a 
party  will  not  be  entitled  to  a  temporary  injunction  pending  the  action, 
unless  the  complaint  discloses  a  case  entitling  the  plaintiff  to  final  re- 
lief by  injunction.6     The  law  with  respect  to  injunctions  has  not  been 

1  Code.  §  218.  Ilogan,  4  id.  225.     Miliken  v.  Caroy.  5  id. 

3  Id.  j  219.  272",  contra. 

■  Id.  j  220.  "  Corning  v.  Troy  Iron  Co.  6  How.  80. 

4  Elovey  v.  McCrea,  4  How.  31.  Ward    v.   Dewey,   7   id.   17.     Ilulce  v. 
1  Roome  v.  Webb,  3  id.  327.     Krom  v.    Thompson,   8  id.  475.     "Wordsworth  v 

Lyon,  5  id.  403 


344  Op  Injunctions.  fCh  0 

materially  changed  by  the  code.1  The  cases  to  which  the  remedy  is  ap- 
plicable are  the  same  now  as  before  the  code.  The  former  decisions  on 
this  subject  are  still  good  authority  on  all  questions  of  jurisdiction. 

It  has  been  held  that  no  court  in  this  state  can  now  rightfully  enjoin  a 
defendant  from  proceeding  in  a  suit  in  another  court  of  the  state,  having 
equal  power  to  grant  the  relief  sought  by  the  complaint.2 

The  foregoing  remarks  are  sufficient  by  way  of  introduction  to  the  sub- 
ject under  discussion.  It  will  be  impossible  to  notice,  in  this  chapter,  all 
the  cases  in  which  the  remedy  by  injunction  is  appropriate.  It  will  be 
sufficient  to  bring  under  review  a  few  of  the  cases  under  the  leading  heads 
of  equity  jurisdiction,  where  this  remedy  has  been  applied.  We  shall 
treat  the  subject  under  the  following  subdivisions  : 

1.  Injunctions  to  stay  proceedings  in  courts  of  law  or  equity. 

2.  To  restrain  the  indorsement  or  negotiation  of  notes  and  bills  of  ex- 
change, the  sale  of  land,  the  sailing  of  a  ship,  the  transfer  of  stock,  or 
the  alienation  of  a  specific  chattel,  and  for  the  delivering  up  of  bonds, 
notes,  &c. 

3.  To  prevent  the  wasting  of  assets  or  other  property  pending  the 
litigation. 

4.  To  restrain  trustees  from  assigning  the  legal  estate,  or  assignees 
from  making  a  dividend. 

5.  To  prevent  the  removing  out  of  the  jurisdiction,  marrying  or  having 
any  intercourse,  which  the  court  disapproves  of,  with  a  ward. 

6.  To  restrain  the  commission  of  waste  and  trespass. 

7.  To  prevent  the  infringement  of  patents  and  the  violation  of  copy 
rights,  and  the  unauthorized  publication  of  letters,  &c. 

8.  To  suppress  the  continuance  of  public  or  private  nuisances,  pur- 
prestures,  &c. 

9.  To  restrain  the  multiplicity  of  suit3,  to  quiet  possessions,  and  to 
repress  vexatious  litigation  ;  and  to  protect  corporations  in  the  enjoyment 
of  their  franchises. 

10.  To  restrain  a  judgment  debtor  from  disposing  of  his  property. 

11.  To  restrain  the  usurpation  of  corporate  powers,  and  the  alienation 
of  corporate  property,  and  to  restrain  insolvent  corporations. 

These  are  far  from  being  all  the  cases  to  which  this  remedial  process 
has  been,  or  may  be  applied,  but  the  discussion  of  them  will  afford  a 
general  view  of  the  nature  of  the  jurisdiction. 

1  Corning  v.  Troy  Iron  Co.  6  How.  92.  3  Grant  v.  Quick,  5  Sandf.  S.  C.  R.  6ia 
Wordsworth  v.  Lyon,  5  id  463. 


Ch   6.1  To  Restrain  Suits  in  other  Courts.  3-15 


SECTION  II. 

OF   INJUNCTIONS   TO   RESTRAIN   PROCEEDINGS   IN   OTHER   COURTS. 

There  is  no  branch  of  equity  jurisprudence  which  met  with  so  much 
disfavor  and  opposition,  in  the  early  stages  of  the  law,  as  the  granting 
of  injunctions  generally;  and  more  particularly  so,  when  the  olject  was 
to  restrain  the  proceedings  of  other  courts.  It  was  one  of  the  charges 
against  Cardinal  Wolsey,  that  he  examined  many  matters  in  chancery 
after  judgment  had  been  given  at  law,  and  that  he  unduly  granted  injunc- 
tions.1 His  successor,  Sir  Thomas  More,  was  cautious  in  granting 
injunctions,  but  when  granted  he  upheld  them  with  firmness,  when  he 
thought  that  justice  required  his  interference  with  the  judgments  of  the 
courts  of  common  law.2  The  struggle  between  the  courts  of  law  and 
equity,  with  respect  to  this  jurisdiction,  was  not  brought  to  a  crisis,  till  the 
time  of  Lord  Ellesmere,  chancellor  to  James  the  1st.  Lord  Coke,  chief 
justice  of  the  king's  bench,  denied  the  power  of  the  chancellor,  and  boldly 
gave  judgment  in  a  case  in  which  the  chancellor  had  granted  an  injunc- 
tion to  stay  proceedings ;  he  bailed,  and  afterwards  discharged  a  person 
who  had  been  committed  by  the  lord  chancellor  for  breach  of  an  injunc- 
tion against  suing  out  execution  on  a  judgment;  and,  in  another  case,  he 
got  Justice  Dodderidge,  a  puisne  judge  of  the  king's  bench,  to  express  a 
strong  opinion,  along  with  him,  that  the  interposition  of  equity  in  actions 
at  law  was  illegal. 

Still  the  chancellor  continued  to  exercise  his  jurisdiction  as  before ; 
and  in  a  case  where  a  judgment  had  been  fraudulently  obtained  in  the 
court  of  king's  bench,  he  pronounced  a  decree  to  set  it  aside,  and  granted 
a  perpetual  injunction  against  execution.  The  matter  was  at  length 
brought  before  the  king,  who,  by  the  advice  of  the  law  officers  of  the 
crown,  decided  in  favor  of  the  jurisdiction  of  equity.3 

But  though  the  jurisdiction  was  thus  firmly  established,  yet  the 
practice  of  issuing  injunctions  to  restrain  proceedings  at  law,  and  indeed 
m  other  cases,  was  sparingly  exercised  until  the  time  of  Lord  Eldon,  more 

1  Lord   Campbell's    Life  of   Cardinal        5  Lord  Campbell's  Life   of  Lord  Ch. 

Wolsey,  p.  385.  Ellesmere,  where  the  controversy  is  stat- 

a  Lord  Campbell's  Life  of  Lord   Ch.  ed  at  length,  210,  213. 
More,  p.  415. 

Ey.  Jua.  4  J 


346  Of  Injunctions.  £Cn.  o. 

than  a  century  later.  Lord  Tburlow,  it  is  said,  would  hardly  grant  an 
injunction  where  the  parties  had  a  remedy  at  law.  Before  his  time,  there 
are  not  more  than  half  a  dozen  instances  of  each  species  of  injunction. 
and  in  these  relief  was  as  often  denied  as  granted.  "  Now/'  says  an 
admirer  of  Lord  Eldon,  "injunction  is,  it  is  well  known,  the  right  arm  of 
the  court,  pervading  the  workshop  of  the  artizan,  the  studio  of  the  artist ;' 
G*nterin£  alike  the  miner's  shaft,  and  the  merchant's  counting  house. 
Almost  all  the  principles  upon  which  this  relief  is  granted  or  refused, 
the  terms  and  conditions  upon  which  it  is  dissolved,  revived,  continued, 
extended  or  made  perpetual,  are  to  be  found  in  Lord  Eldon's  judgments 
alone."1 

A  bitter  controversy,  at  one  time,  existed  in  New- York,  between  the 
supreme  court  and  the  court  of  chancery,  with  respect  to  the  power  of 
the  former  to  commit  for  contempt.2  And  there  has  always  been,  while 
the  two  courts  were  kept  separate,  a  strong  party  adverse  to  the  existence 
of  the  court  of  chancery  as  a  distinct  tribunal.  Nevertheless,  the  su- 
preme court  held  that  an  existing  injunction,  although  operating  only  on 
the  parties,  their  attorneys  and  agents,  would  be  noticed  by  the  court, 
for  the  purpose  of  promoting  the  ends  of  justice,  and  of  preserving  har- 
mony between  the  two  courts.3 

Injunctions  to  stay  proceedings  at  law  are  sometimes  granted  before 
the  action  is  at  issue  ;  sometimes  after  issue  and  before  trial ;  sometimes 
after  verdict  and  before  judgment,  and  sometimes  after  judgment. 

The  causes  for  which  the  injunction  in  these  cases  may  be  allowed,  are 
various.  In  one  instance,  in  an  action  at  law  against  an  accommodation 
indorser,  the  court  granted  an  injunction  in  his  favor  until  the  creditor 
should  have  first  pursued  his  remedy  against  the  principal  debtor,  from 
whom  he  had  ample  security  by  bond  and  mortgage.4  Where  the  princi- 
ples of  equity  require  that  the  action  against  the  surety  should  be  post- 
poned until  the  creditor  has  exhausted  his  remedy  against  the  principal 
debtor,  the  action  against  the  surety  will  be  stayed  by  injunction  ;  and  if 
satisfaction  of  the  debt  be  obtained  from  the  principal,  the  injunction 
against  the  further  prosecution  of  the  surety  will  be  made  perpetual.  As 
the  surety,  on  paying  the  debt,  is  entitled  to  be  subrogated  to  all  the 
rights  of  the  creditor,  and  is  entitled  to  the  securities  which  he  has 
taken,  if  there  be  any  suspicion  as  to  the  validity  of  those  securities, 


1  Lord  Campbell's  Life  of  Lord  Eldon,    error,  6  id.  337.    Yates  v.  Lansing,  5  id. 
pp.  501,  502.  282 ;  S.  0.  in  error,  9  id.  395. 

s  Es  parte  Yates,  4  J.  R.  317;  S.  C.  in        s  Hoyt  v.  Gelston  13  J.  E.  139. 

1  Hayes  v.  Ward,  4  J   Ch.  E.  123. 


Co.  6.]  To  Restrain  Suits  in  other  Courts.  347 

it  was  thought  by  the  chancellor  that  their  validity  should  be  tested  by 
the  creditor  in  an  action  brought  in  his  own  favor,  and  at  his  own  ex- 
pense, rather  than  that  the  surety  should  be  at  once  called  upon  to  pay  the 
debt,  and  then  be  turned  over  to  a  doubtful  remedy.  And  accordingly  he 
restrained,  by  injunction,  the  action  against  the  surety,  until  the  further 
order  of  the  court,  to  enable  the  creditor  to  enforce  the  collection  of  a 
bond  and  mortgage  taken  to  secure  the  debt,  and  which,  as  between  the 
creditor  and  the  surety,  was  the  primary  fund.1 

The  cases  in  which  relief  in  equity  may  be  granted,  against  actions  at 
law.  arc  infinite.  The  jurisdiction  docs  not  spring  from  any  superiority 
of  a  court  of  equity  over  a  court  of  law,  but  originates  in  the  fact,  that 
the  party  complained  of  is  making  a  use  of  the  jurisdiction  at  law,  con- 
trary to  equity  and  good  conscience.2  There  are  numerous  instances 
where  a  defendant  has  a  good  defense  to  an  action  at  law,  which,  by  mis- 
take, accident  or  fraud  of  the  other  party,  he  is  prevented  from  making. 
In  all  these  cases  equity  will  interpose,  and  make  the  defense  available. 
In  most  of  the  eases  we  have  considered  under  the  head  of  fraud,  acci 
dent  and  mistake,  the  remedjr  was  made  effectual  by  injunction. 

We  can  learn  when  equity  will  stay  an  action  at  law,  by  adverting  to 
some  of  the  instances  in  which  it  will  not  interpose.  In  the  first  place, 
it  is  well  settled  that  equity  will  not  restrain  an  action  at  law  by  a  pre- 
liminary injunction,  on  the  application  of  the  defendant  in  such  action, 
if  he  has  a  perfect  defense  at  law.3  Unless  the  injunction  is  necessary 
to  make  the  defense  available;  if  it  will  be  as  effective  without,  as  it  will 
bo  witli  the  aid  of  equity,  there  is  no  reason  for  withdrawing  the  action 
from  the  forum  which  the  plaintiff  has  sought.4 

On  the  same  principle,  a  party  is  not  entitled  to  an  injunction  to  stay 
proceedings  in  an  action  at  law  upon  an  award,  on  the  ground  that  the 
award  was  obtained  by  the  fraud  or  corruption  of  the  arbitrators,  or  that 
there  never  was  an}r  submission  to  them  as  arbitrators.5  In  such  a  case 
there  is  a  perfect  defense  at  law  upon  the  award,  and  relief  in  equity  is 
not  necessary.  Nor  will  equity  afford  relief  to  a  party  who,  by  his  own 
negligence,  has  lost  the  opportunity  of  making  a  defense  at  law.*  Nor 
will  it  grant  an  ex  parte  injunction  upon  a  mere  fishing  bill ;  as  where 

•  Hayes  v.  Ward,  i  J.  Cli.  R.  134.  *  Osborne  Y.Taylor,  5  P.iige,  515.  Grant 

■  Hill  v.  Turner,  1  Atk.  510.  v.  Quick,  5  Sand.  S.  C.  R.  612. 

■  N.  Y.  Dry  Dock  Co.  v.  Tlie  Am.  Life  6  Snediker  v.  Pearson,  2  Barb.  CL.  R. 
Ins.  Co.  11  Paige,  38-i.    Mitchell  v.  Oak-  107. 

lev,  7  id.  68.  6  Dodge  v.  Strong,  2  J.  Cli.  R.  2'28 

Murray  v.  Graliim,  6  Paige,  0:_. 


348  Of  Injunctions.  [Ch.  0. 

it  is  sought  to  restrain  a  suit  at  law,  and  no  fact  is  positively  sworn  to  as 
being  in  the  knowledge  of  the  defendant,  which,  if  proved,  would  defeat 
him  in  the  action.' 

The  court  will  not,  unless  perhaps  in  some  very  special  case,  exercise 
the  power  by  injunction,  of  restraining  proceedings  which  have  been  pre- 
viously commenced  in  the  courts  of  another  state.  Not  only  comity,  but 
public  policy,  forbids  the  exercise  of  such  a  power.2  As  was  said  by  Chan- 
cellor Walworth,  in  Mead  v.  Merritt :  If  this  court  should  sustain  an  in- 
junction bill  to  restrain  proceedings  previously  commenced  in  a  sister 
state,  the  court  of  that  state  might  retaliate  upon  the  complainant,  who 
was  defendant  in  the  suit  there  ;  and  by  process  of  attachment  might 
compel  him  to  relinquish  the  suit  subsequently  commenced  here.  By 
this  course  of  proceeding,  the  courts  of  different  states  would  indirectly 
be  brought  into  collision  with  each  other  in  regard  to  jurisdiction  ;  and 
the  rights  of  suitors  might  be  lost  sight  of  in  a  struggle  for  what  might 
be  considered  the  legitimate  powers  and  rights  of  courts.  Nor  will  the 
courts  of  the  United  States  enjoin  proceedings  in  a  state  court.3  Nci 
can  the  state  courts  enjoin  proceedings  in  the  courts  of  the  United  States. 

The  cases  which  have  hitherto  been  considered,  are  where  relief  has  been 
sought  against  an  action  at  law,  in  its  early  stages,  and  before  it  has  pro- 
ceeded to  issue.  At  the  revision  of  the  laws  in  1830,  it  was  deemed  ad- 
visable to  impose  some  restrictions  upon  the  power  of  granting  injunctions 
in  actions  at  law,  after  issue  ;5  and  the  code  of  procedure  extended  some 
of  these  restrictions  to  all  cases.6  In  addition  to  this,  the  rules  of  the 
court,  at  an  early  day,  contained  salutary  provisions  against  the  abuse  of 
the  power,  the  principles  of  which  were  incorporated  in  the  statutes  be- 
fore mentioned,  with  other  improvements.7  As  these  enactments  affect 
the  jurisdiction  of  the  court,  as  well  as  its  practice,  they  seem  important 
to  be  stated  in  this  connection. 

The  Revised  Statutes  enact,  that  no  injunction  shall  be  issued  to  stay  the 
trial  of  any  personal  action  at  issue  in  a  court  of  law,  until  the  party  ap 
plying  therefor  shall  execute  a  bond,  with  one  or  more  sufficient  sureties, 
to  the  plaintiff  in  such  action  at  law,  in  such  sum  as  the  chancellor  or 
master  allowing  the  injunction  shall  direct,  conditioned  for  the  payment 

'•  Burgess  v.  Smith,  2  Barb.  Ch.  R.  276.        *  McTCee  v.  Voorhees,  7  Cranch.  270. 
Mead  v.  Merritt,  2  Paige,  402.    Williams        6  2  R.  S.  188  et  seq. 
7.  Harden,  1  Barb.  Ch.  R.  298.  6  Code,  §  222. 

2  Mead  v.  Merritt,  2  Paige,  405.     Bur-        7  See  Chancery  Rules  of  Ch's  Lansing 

ge--  v.  Smith,  2  Barb.  Ch.  R.  280.  and  Kent,  41,  42,  43. 

''  Jnggs  v.  Wolcott,  4  Cranch,  179. 


Ch.  6.]  To  Restrain  Suits  in  other  Courts.  349 

to  the  said  plaintiff  and  Jiis  legal  representatives,  of  all  moneys  which 
may  be  recovered  by  such  plaintiff  or  his  representatives,  or  the  collec- 
tion of  which  may  be  stayed  by  such  injunction,  in  such  action  at  law,  for 
debt  or  damages  and  for  costs  therein  ;  and  also  for  the  payment  of  such 
costs  as  may  be  awarded  to  them  in  the  court  of  chancery  in  the  suit  in 
which  such  injunction  shall  issue.1  The  foregoing  relates  to  actions  at 
law  at  any  stage  between  issue  and  trial.  The  next  section  provides, 
that  no  injunction  shall  be  issued  to  stay  proceedings  at  law  in  any  per- 
sonal action,  after  verdict,  and  before  judgment  thereupon,  unless  a  sum 
of  money,  equal  to  the  amount  for  which  the  verdict  was  given,  and  the 
costs  of  the  suit,  shall  be  first  deposited  with  the  court  of  chancery,  by 
the  party  applying  for  such  injunction,  or  a  bond  for  the  payment  thereof, 
shall  be  given  as  thereafter  directed.  And  the  succeeding  section  enacts, 
that  no  injunction  shall  issue  to  stay  proceedings  at  law,  in  any  personal 
action,  after  judgment,  unless,  1st.  A  sum  of  money,  equal  to  the  full 
amount  of  such  judgment,  including  costs,  shall  be  first  deposited  by  the 
party  applying  for  such  injunction,  or  a  bond  in  lieu  thereof  be  given,  as 
thereafter  directed.  And,  2d.  Unless  such  party  in  addition  to  such  de- 
posit-shall also  execute  a  bond,  with  one  or  more  sufficient  sureties,  to  the 
plaintiff  in  the  said  judgment,  in  such  sum  as  the  chancellor  or  officer 
allowing  the  injunction  shall  direct,  conditioned  for  the  payment  to  the 
said  plaintiff  and  his  legal  representatives,  of  all  such  damages  and  costs 
as  may  be  awarded  to  them  by  the  court,  at  the  first  hearing  of  the  cause. 
It  is  also  provided,  that  money  so  deposited  to  obtain  an  injunction,  after 
verdict  or  judgment,  may  be  paid  over  to  the  plaintiff  in  the  action  at 
law,  on  his  giving  adequate  security  to  refund  it,  when  ordered  by  the 
court. 

The  foregoing  provisions  relate  to  personal  actions.  To  cover  the 
whole  ground  of  equity  jurisdiction  it  was  further  enacted,  that  no  in- 
junction should  issue  to  stay  proceedings  at  law,  in  any  action,  for  the 
recovery  of  lands,  or  of  the  possession  thereof,  after  verdict,  unless  the 
party  applying  therefor  shall  execute  a  bond,  with  one  or  more  sureties, 
tu  the  plaintiff  in  such  action  at  law,  in  such  sum  as  the  chancellor  or 
officer  allowing  the  injunction  shall  direct,  conditioned  for  the  payment 
to  the  plaintiff  in  such  action,  and  his  legal  representatives,  of  all  such 
damages  and  costs  as  may  be  awarded  to  them,  in  case  of  a  decision 
against  the  party  claiming  the  injunction. 

Such  were  the  salutary  provisions  of  the  Revised  Statutes,  restrictive 
of  the  power  of  courts  of  equity  to  stay  proceedings  at  law.     It  does  not 

1  2  E.  S.  188,  §  139. 


3o0  Of  Injuxcttoxs.  [Ch.  6 

l^elong  to  this  treatise  to  point  out  the  mode  of  ascertaining  damages, 
and  enforcing  the  securities  directed  to  be  taken.  But  it  is  obvious  that 
cases  may  arise  in  which  a  deposit  of  the  whole  sum  recovered,  as-  a  con- 
dition to  the  allowance  of  an  injunction,  would  be  inequitable  and  oppres- 
sive. The  chancellor  wasy  therefore,  empowered  to  dispense  with  any 
deposit  of  moneys  required  by  any  of  the  preceding  sections,  and,  in 
lieu  thereof,  to  direct  the  execution  of  a  bond,  with  sureties,  conditioned 
to  pay  the  amount  so  required  to  be  deposited,  whenever  ordered  by  the 
court  of  chancery ;  or  if  a  bond  was  already  required,  in  addition  to  such 
deposit,  then  to  direct  the  enlargement  of  the  penalty  and  condition  of 
such  bond  as  might  be  requisite.  But  whenever  such  deposit  shall  be 
dispensed  with,  the  bond  so  substituted  or  enlarged,  shall  be  executed  by 
at  least  two  sufficient  sureties.  It  was  also  foreseen  that  some  cases  might 
arise  in  which  the  interposition  of  the  court  might  be  invoked,  in  which 
both  a  deposit  of  money  or  the  giving  of  a  bond  might  be  dispensed  with. 
It  was,  therefore,  accordingly  enacted,  that  whenever  an  injunction  should 
be  applied  for,  to  stay  proceedings  at  law,  in  any  action  after  judgment 
or  verdict,  on  the  ground  that  such  judgment  or  verdiet  was  obtained  by 
actual  fraud,  the  chancellor  should  have  power  to  dispense  with  the  de- 
posit of  any  moneys  or  the  execution  of  any  bond.1 

On  the  abrogation  of  the  court  of  chancery  by  the  present  constitution, 
and  the  transfer  of  its  jurisdiction  to  the  supreme  court,  all  the  laws  then 
in  force,  relating  to  the  court  of  chancery  and  its  officers,  were  made  ope- 
rative, as  far  as  applicable,  to  the  supreme  court  and  its  judges  and  offi- 
cers.2 And  the  Code  of  Procedure  assumes  that  the  foregoing  provisions 
of  law  are  in  force,  and  it  merely  requires  that  when  no  provision  is 
made  by  statute  as  to  security  upon  an  injunction,  the  court  or  judge  shall 
require  a  written  undertaking,  on  the  part  of  the  plaintiff,  with  or  with- 
out sureties,  to  the  effect,  that  the  plaintiff  will  pay  to  the  party  enjoined 
such  damages,  not  exceeding  the  amount  to  be  specified,  as  he  may  sus- 
tain by  reason  of  the  injunction,  if  the  court  shall  finally  decide  that  the 
plaintiff  was  not  entitled  thereto.3  This  was  a  mere  revision  and  mod- 
ification of  the  31st  rule  of  Chancellor  Walworth. 

A  compliance  with  the  statute  requirments  is  essential  to  the  jurisdic- 
tion of  the  court,  and  without  which  the  injunction  will  be  discharged 

As  an  injunction  to  restrain  proceedings  at  law  is  directed  only  to  the 
parties,  and  assumes  no  superiority  over  the  court  in  which  the  action 

1  2  R.  S.  190,  §  147.  '  Code,  §  222. 

8  Judiciary  Act,  L.  of  1847,  §  16,  p.  323.        4  Jenkins  v.  \Yilds,  2  Paige,  394. 


Ch.  6.]  To  Restrain  Suits  in  other  Courts.  351 

is  pending,  but  is  granted  solely  on  the  ground  that  some  equitable  cir- 
cumstances exist  which  render  the  prosecution  at  law  against  conscience, 
there  is  no  reason  why  an  injunction  should  not  be  granted,  by  the  court 
in  which  the  action  is  pending,  if  the  court  has  jurisdiction  both  at  law 
and  in  equity.  To  make  the  injunction  effectual,  it  may  be  necessary  t<> 
bring  in  other  parties,  and  the  transaction  out  of  which  the  equity  arises 
may  be  of  too  complicated  a  nature  to  be  investigated  in  a  motion  in  the 
same  court  for  summary  relief.  To  prevent  fraud,  or  great  injustice,  in 
such  a  case,  although  the  court  has  jurisdiction  to  grant  relief  by  a  motion  in 
the  same  cause,  it  will,  nevertheless,  merely  stay  proceedings  for  a  limited 
time,  to  enable  the  complaining  party  to  seek  the  aid  of  a  court  of  equity.1 
The  court  does  not  in  such  cases  enjoin  itself,  but  restrains  the  plaintiff 
from  proceeding  in  a  manner  that  deprives  the  defendant  of  some  defense 
to  which  he  is  equitably  entitled,  or  which  gives  to  the  plaintiff  an  advan- 
tage which,  in  conscience,  he  should  not  possess.  The  New- York  code 
of  procedure  has  afforded  some  facilities  for  investigating  facts  on  a  mo- 
tion, which  the  courts  did  not  formerly  have,  unless  in  an  expensive  and 
imperfect  manner  by  directing  an  issue.  Now  a  reference  may  be  taken, 
for  this  purpose,  in  any  stage  of  the  action.2  But  it  is  believed  that  many 
cases  may  still  arise  where  this  remedy,  if  not  entirely  ineffectual,  is  great- 
ly inadequate. 

The  general  rule  is,  that  equity  will  not  relieve  against  a  judgment  at 
law,  on  the  ground  of  its  being  contrary  to  equity,  unless  the  defendant 
below  was  ignorant  of  the  fact  in  question,  pending  the  suit,  or  it  could 
not  have  been  received  as  a  defense.  If  a  party  will  suffer  a  judgment 
to  pass  against  him  by  neglect,  he  cannot  have  relief  in  equity  for  a  mat- 
ter of  which  he  might  have  availed  himself  at  law.3 

Suppose  a  plaintiff  should  recover  a  verdict  for  a  debt  which  had  been 
paid,  it  would  be  manifestly  inequitable  that  he  should  enjoy  the  fruits 
of  his  recovery.  Still,  even  in  such  a  case,  equity  could  not  relieve,  un- 
less the  plaintiff  knew  the  fact  to  be  otherwise,  and  the  defendant  was 
ignorant  of  it  at  the  trial.4  But  should  the  defendant,  knowing  of  the 
payment,  submit  to  go  to  trial,  without  obtaining  the  plaintiff's  answer  to 
a  bill  of  discovery,  or,  under  the  present  practice,  without  calling  the 


1  Lansing  v.  Orcott,  16  J.  E.  4.    Smith  Guin  v.  Gouverneur  &  Kemble,  1  T.  Cas. 
r.  Paige,  16  J.  R.  395. 

3  Code,  §  271,  sub.  3.  4  Williams  v.  Lee,  3  Atk.  223.     Gains 

•  Lansing  v.  Eddy,  1  J.  Ch.  R.  51.    Le-  borough  v.  Gilford,  2  P.  Wius.  434. 


852  Of  Injunctions.  [Ch.  6 

plaintiff  as  a  witness  to  prove  the  fact  on  the  trial,  equity  would  not 
relieve.1 

There  may  be  cases  where  the  rule  is  subject  to  some  modification, 
but,  in  general,  where  a  party  has  neglected  his  means  of  defense  at  law, 
equity  will  not  interfere.  Thus,  where  a  defendant  at  law  knew  of  the 
existence  of  facts  constituting  a  defense  and  omitted  to  prove  them  on 
the  trial,  and  acquiesced  nearly  three  years  in  the  recovery,  the  court 
refused  to  relieve  him.2  So  if  the  judgment  be  paid,  and  the  plaintiff  in 
the  execution  still  claims  to  enforce  it,  a  bill  in  equity  to  stay  the  pro- 
ceeding is  in  general  unnecessary,  because  there  is  a  prompt  and  adequate 
relief  at  law  by  motion.3  But  should  the  relief  be  sought  by  a  person 
not  a  party  to  the  judgment,  on  whose  land  it  was  attempted  to  be  enforced, 
a  resort  to  an  action  might  be  indispensable,  and  an  injunction  would  be 
an  appropriate  remedy.4 

Where  the  whole  or  a  part  of  the  judgment  has  been  paid,  and  the 
plaintiff,  notwithstanding,  is  proceeding  to  collect  the  whole  judgment,  or 
the  part  thereof  which  has  been  paid,  the  proper  remedy  of  the  defend- 
ant is  by  a  summary  application  to  the  court  in  which  the  judgment  was 
recovered.5  Such  court  can.  in  general,  afford  relief  either  by  an  order 
to  stay  execution,  and  in  case  of  full  payment,  by  an  order  directing  sat- 
isfaction to  be  acknowledged.  The  statute  requiring  a  deposit  of  the 
amount  of  the  judgment,  as  a  condition  of  relief,  does  not  apply  to  summary 
applications  in  the  court  which  pronounced  the  judgment.  With  respect 
to  judgments  obtained  by  confession  by  virtue  of  a  bond  and  warrant  of 
attorney,  it  has  long  been  settled  that  the  court  in  which  the  judgment 
is  entered  has  an  equitable  jurisdiction,  and  may  examine  and  decide 
whether  it  was  fairly  obtained  or  not,  either  on  the  application  of  the 
defendant,  or  of  a  creditor  having  an  interest  in  the  inquiry.6 

If,  in  case  of  an  alleged  payment  of  a  judgment,  it  becomes  necessary 
to  seek  relief  in  a  court  of  equity,  and  it  is  desirable  that  the  giving  of  a 
bond,  or  the  making  of  the  deposit  of  the  amount,  should  be  dispensed 
with,  it  is  incumbent  on  the  party  thus  seeking  to  be  excused  to  state  in 
his  complaint  the  time,  circumstances  and  amount  of  each  payment,  so  as 
to  enable  the  court,  by  mere  computation,  to  fix  the  amount  of  the  bond 
or  deposit ;  and  to  give  the  party  who  is  sought  to  be  enjoined  an  oppor- 
tunity to  meet  and  deny  the  fact  of  such  payments,  if  they  have  not  been 

•  Williams  v.  Lee,  3  Atk.  223.     Gains-        4  Lansing  v.  Orcott,  16  J.  R.  4. 
borcugh  v.  Gifford,  2  P.  Wins.  424.     Le-        i  Christie  v.  Bogardus,  1  Barb.  Ch.  R. 
Gwin  v.  Gouverneur,  1  J.  Cas.  436.  167. 

*  Lansing  v.  Eddy,  1  J.  Ch.  E.  51.  B  Frazer  v.  Frazer,  9  J.  E.  80.     Brink- 
» Id.                                                         erboof  v.  Marvin,  5  J.  Ch.  E.  310- 


Ch.  G.J  To  Restrain  Suits  in  other  Courts.  B53 

actually  made  as  charged  in  the  complaint.1  A  mere  geneial  statement 
that  the  judgment  has  been  paid,  is,  it  seems,  not  enough  to  warrant  the 
court  in  excusing  the  party  from  complying  "with  the  requirements  of  the 
statute,  and  notice  should  be  given  to  the  adverse  party  of  the  intended  ap- 
plication, that  the  court,  after  hearing  both  sides,  may  be  enabled  to  judge 
"»f  the  propriety  of  granting  the  injunction,  and  of  dispensing  with  a  bond 
or  a  deposit.2  If  the  facts  be  not  within  the  personal  knowledge  of  the 
plaintiff,  he  should  obtain  the  affidavits  of  those  by  whom  they  can  be 
proved,  or  such  other  evidence  as  will  satisfy  the  court,  beyond  all  reason- 
able doubt,  that  the  facts  alleged  in  the  complaint  are  true.3 

A  plaintiff,  whose  remedy  was  complete  at  law,  but  who  by  accident 
was  prevented  to  make  it  there,  may  be  relieved  in  equity  against  the 
judgment.4  The  same  reason  applies,  where  the  defense  has  not  been 
made  by  reason  of  a  mistake  of  the  defendant.  As  where  a  plaintiff  re- 
covers a  debt  at  law  against  a  defendant,  and  the  latter  afterwards  finds  a 
receipt,  under  the  plaintiff's  own  hand,  for  the  money  in  question.  In 
such  case  the  recovery  is  against  conscience,  and  though  the  receipt  was 
at  the  time  of  the  trial  in  the  defendant's  hands,  yet  if  he  was  not  ap- 
prised of  it,  it  seems  he  is  entitled  to  relief  in  equity.  It  is  against  con- 
science that  the  plaintiff  should  be  twice  paid  for  the  same  debt ;  so  if 
the  plaintiff's  own  book  appeared  to  be  crossed,  and  the  money  was  paid 
before  the  action  brought.5 

But  the  court  will  not  relieve  against  a  judgment  at  law,  on  the  grounu 
of  its  being  contrary  to  equity,  unless  the  defendant  in  the  judgment  was 
ignorant  of  the  fact  in  question  pending  the  suit,  or  it  could  not  have 
been  received  as  a  defense,  or  unless  he  was  prevented  from  availing  him- 
self of  the  defense  by  fraud  or  accident,  or  the  act  of  the  opposite  party, 
unmixed  with  negligence  or  fault  on  his  part.6 

The  cases  in  which  relief  against  proceedings  at  law  has  been  most 
frequently  sought,  are  where  the  rights  of  the  party  are  of  an  equitable 
nature,  or  were  incapable  of  being  asserted  in  a  court  of  law.  If  the 
claims  of  the  defendant  arise  out  of  the  same  transaction,  there  is  a  natu- 
ral equity  that  one  should  compensate  the  other,  and  that  the  balance 
only  should  be  recovered.     This  natural  equity  was,  by  the  civil  law,  cx- 

1  Christie  v.  Bogardus,  1  Barb.  Cli.  B.  id.  105.  Degraffenreid  v.  Donald,  211. 
172.  &  M.  10. 

2  Id.  Campbell  v.  Morrison,  7  Paige,  6  Gainsborough  Giflbrd,  2  P.  Wins, 
157.  424. 

*  Id.  •  Foster  v.  Wood,  6  J.  Ch.  R.  90.     Lao- 

4  Jones  v.  Woodlmll,  1  Root,  298.  Doty  sing  v.  Eddy,  1  id.  51.     Duncan  v.  Lyon, 

t.  Whittlesey,  id.  310.     Gay  v.  Adams,  3  id.  851. 
Ey.  Job.                                  45 


S54  Of  Injunctions.  fCh,  5 

tended  even  to  unconnected  claims  which  were  liquidated,  or  were  capaLle 
of  liquidation  by  mere  computation.  The  common  law  required  that  dis- 
tinct and  independent  demands  should  be  sued  for  by  the  respective  par- 
ties, in  separate  actions,  against  each  other.1  There  are  numerous  cases 
not  coming  within  the  statute  of  set-off,  where  evidence,  in  mitigation  of 
damages,  is  admissible  at  law.  "Where,  on  the  sale  of  a  chattel,  there  is 
either  warranty  or  fraud  with  reference  either  to  its  quality  or  value,  the 
defendant  might,  under  the  general  issue,  upon  notice  of  such  defense,  in 
an  action  brought  against  him  for  the  price,  prove  the  fraud  or  breach  of 
contract  in  mitigation  of  damages.  This  is  the  foundation  of  the  doctrine 
of  recoupment.2 

Under  the  New-York  code  of  procedure,  the  distinction  between  ac- 
tions at  law  and  suits  in  equity,  and  the  forms  of  all  such  actions  and 
suits,  heretofore  existing,  are  abolished  ;  and  it  is  provided,  that  here- 
after there  be  but  one  form  of  action  for  the  enforcement  or  protection 
of  private  rights,  and  the  redress  of  private  wrongs,  to  be  denominated  a 
civil  action.3  The  code,  however,  allows  the  plaintiff  to  unite  in  the 
same  complaint  several  causes  of  action,  whether  they  be  such  as  have 
been  heretofore  denominated  legal  or  equitable,  or  both,  where  they  all 
arise  out  of  the  same  transaction,  or  transactions,  connected  with  the 
same  subject  of  action.  But  the  causes  of  action  so  united  must  all  be- 
long to  one  of  the  classes  into  which  actions  are  divided,  and  must  affect 
all  the  the  parties  to  the  action,  and  not  require  different  places  of  trial, 
and  must  be  separately  stated.4 

These  provisions  of  the  code  give  rise  to  a  great  variety  of  questions, 
some  of  which  have  already  been  subjected  to  legal  discussion,  and  to  the 
decision  of  the  courts.  There  are  far  more  which  remain  yet  to  be  de- 
cided. In  an  ejectment  it  has  been  held  that  a  defendant  cannot,  in  an 
answer,  denying  the  plaintiff's  legal  title,  set  up  an  equitable  defense, 
looking  to  affirmative  relief.5  One  objection  to  this  uniting  of  an  equi- 
table with  a  legal  defense  is,  that  the  latter  requires  a  trial  by  jury, 
and  the  former  by  the  court.6  That  decision,  however,  was  made  prior 
to  the  amendments  of  the  code  in  1852.  By  the  amendments,  a  defend- 
ant is  allowed  not  only  to  deny  generally  or  specifically  each  material 

1  Reab  v.  M'Allister,  8  Wend.  115.  s  Code,  §  69. 

2  Id.    Battermanv.  Price,  3  Hill,  171.        "  Id.  §  167. 

Van  Epps  v.  Harrison,  5  id.  63.     Mayor  6  Cochran  v.  Webb,  4  Sandf.  S.  OL  R 

of  Albany  v.  Trowbridge,  5  id.  71.     Bar-  653. 

ber  v.  Rose,  id.  76.  Nicoll  v.  Dusenbu-.y,  8  Id. 
2  Comst.  283. 


Ch.  6.J  To  Restrain  Suits  in  other  Courts.  355 

allegation  of  the  complaint,  which  is  controverted  by  him,  or  any  "knowl- 
edge or  information  thereof  sufficient  to  form  a  belief,  but  he  is  also  al- 
lowed to  set  forth,  by  answer,  a  statement  of  any  new  matter  constituting 
a  icfense  or  counterclaim.1  The  counterclaim  must  be  one  existing  it- 
favor  of  a  defendant,  and  against  a  plaintiff,  between  whom  a  several 
judgment  maybe  had  in  the  action,  and  arising  out  of  one  of  the  follow- 
ing causes  of  action  :  1.  A  cause  of  action  arising  out  of  the  contract  or 
transaction  set  forth  in  the  complaint  as  the  foundation  of  the  plaintiff's 
claim,  or  connected  with  the  subject  of  the  action :  2.  In  an  action  aris- 
ing on  contract,  any  other  cause  of  action  arising  also  on  contract,  and  ex- 
isting at  the  commencement  of  the  action.  The  defendant  may  set  forth,  by 
answer,  as  many  defenses  and  counterclaims  as  he  may  have,  whether  they 
be  such  as  have  been  heretofore  denominated  legal  or  equitable,  or  both. 
The)7  must  each  be  separately  stated,  and  refer  to  the  causes  of  action  which 
they  are  intended  to  answer,  in  such  manner  that  they  may  be  intelligi- 
bly distinguished.  - 

If  matter  of  set-off  or  of  recoupment  exist,  which  is  the  subject  of  & 
separate  action,  it  need  not  be  used  by  the  defendant  as  a  defense,  either* 
in  whole  or  in  part,  but  redress  may  be  sought  by  a  cross-action.3     But 
such  matter  will  afford  no  ground  for  an  injunction  against  the  judgment. 
The  remedy  at  law  is  perfect. 

If  the  matter  of  defense  originates  in  the  transaction  out  of  which  the 
c.uisc  of  action  springs,  and  affords  either  a  legal  or  equitable  defense  to 
it,  and  is  within  the  knowledge  of  the  defendant,  it  should  be  used  as  a 
defense  to  the  original  action ;  and  if  it  is  voluntarily  omitted,  it  would 
sr 'I'm,  on  principle,  that  it  can  never  be  the  subject  of  a  fresh  action,  or 
afford  ground  for  staying  the  proceedings  in  the  original  action.4  The 
same  rule,  since  the  code  of  1852,  should  apply  to  an  equitable  defense 
available  at  law,  which  the  defendant  omitted  to  make,  that  before 
governed  when  a  legal  defense  was  voluntarily  abandoned. 

It  is  probable  that  the  legislature  intended,  by  the  amended  code  of 
1852,  to  permit  an  equitable  defense  to  be  set  up  to  a  legal  claim.  Thus, 
Lr  example,  in  an  action  to  recover  the  possession  of  land,  it  would  seem 
to  be  competent  to  allow  a  defendant,  by  his  answer,  to  set  up  an  agree- 
ment to  purchase,  followed  up  by  such  circumstances  as  entitle  him  to  a 
specific  performance  of  the  contract.     In  sucli  case  the  answer  should 

1  Code,  1-19,  as  amended  in  1852.  can  v.  Lyon,  3  id.  351.  Le  Guin  v.  Gouv- 

*  Id.  erneur,  1  J.  Cas.  492  and  notes,  Shep- 

3  Il.ilsey  v.  Carter,  1  Duer,  •6(57.  herd's  ed. 
'  Foster  v.  Wood,  G  J.  Ch.  R.  90.  Dun- 


?>oo  Of  Injunctions.  [Ch.  6 

claim  affirmative  relief,  in  order  that  the  plaintiff  may.  if  he  pleases, 
reply  to  the  same.  An  answer,  in  such  a  case,  partakes  of  the  nature  of 
a  complaint.  The  power  conferred  on  the  court  to  give  judgment,  under 
the  code  of  1852,  is  broad  enough  to  reach  every  case  of  this  nature,  as 
well  as  cases  of  interpleading.1  We  are  not  without  precedent  for  cases 
under  the  old  practice,  where  both  parties  are  actors.  The  action  of 
replevin  affords  an  example,  and  the  corresponding  action  under  the  code, 
for  the  claim  and  delivery  of  personal  property,  is  another  instance  of  the 
same  kind.  Such  an  action  will  become  more  or  less  complicated,  and 
will  be  attended  with  many  difficulties.2  Under  the  original  code,  the 
better  opinion  was,  that  an  equitable  defense  could  only  be  made  avail 
able  by  a  cross-action.3  An  original  and  cross-bill  were  always  treated 
as  one  suit,  and  the  proceeding  was  less  complicated  than  if  the  whole 
were  embraced  in  a  single  set  of  pleadings. 

If  a  judgment  be  obtained  by  fraud,  relief  may  sometimes  be  had  by 
motion  in  the  same  court;  but  when  that  relief  cannot  be  obtained,  or  is 
inadequate,  a  court  of  equity  will  interpose.  In  one  case.  Lord  Lough- 
borough said,  if  a  judgment  was  obtained  at  law  against  conscience,  by 
concealment,  relief  could  be  afforded  in  equity.4  So  a  decree  obtained 
by  fraud  and  covin,  may  be  relieved  against,  not  by  rehearing  or  appeal, 
but  by  an  original  bill.6  And  the  general  principle  was  stated,  on  a 
recent  occasion,  in  the  supreme  court  of  the  United  States,  with  regard 
to  injunctions  after  a  judgment  at  law.  that  any  fact  which  proves  it  to 
be  against  conscience  to  execute  such  judgment,  and  of  which  the  party 
could  not  have  availed  himself  in  a  court  of  law,  or  of  which  he  might 
'have  availed  himself  at  law,  but  was  prevented  by  fraud  or  accident, 
unmixed  by  any  fault  or  negligence  in  himself,  or  his  agents,  will  author- 
ize a  court  of  equity  to  interfere,  by  injunction,  to  restrain  the  adverse 
party  from  availing  himself  of  such  judgment.6 

This  relief  is  also  sometimes  granted  by  requiring  satisfaction  to  be 
■acknowledged  by  the  plaintiff,7  and  sometimes  by  granting  a  new  trial 
in  the  court  of  law.  C 

Thus,  in  one  case  in  New- York,  it  was  said,  that  the  court  of  chancery 
would,  on  a  bill  filed  for  that  purpose,  grant  a  new  trial  in  the  court  of 

1  Code  of  1S52,  §  274.  *  Mitchell  v.  Harris,  2  Yes.  jr.  135. 

2  Dewey  v.  Hoag,  15  Barb.  365.  Haire        6  Bradish  v.  Gee,  Ambler,  229. 
v.  Barker,  1  Seld.  362.  '  Truly  v.  Wanser,  5  How.  141. 

»  Otis  v.  Sill,   8  Barb.  201.     Crary  v.        7  Barnsly  v.  Powell,  1  Yes.  289,  llfc 
Goodman,  9  id.  657.     Cochran  v.  Webb, 
4  Saudf.  S.  C.  R.  653. 


Ob  ^.J  To  Restrain  Suits  in  other  Courts.  857 

common  pleas,  on  the  ground  of  newly  discovered  evidence,  that  court  not 
having  at  that  time  jurisdiction  to  grant  a  new  trial,  except  for  irregular- 
ity. But  it  was  said,  to  entitle  the  party  to  that  relief,  he  must  have  used 
all  the  means  in  his  power  to  establish  at  the  trial  the  fact  which  he  seeks 
to  prove.1 

Applications  to  courts  of  equit}-  for  a  new  trial,  after  a  verdict  at  law, 
are  very  rare  in  modern  times,  since  courts  of  law  exercise  the  same  juris- 
diction, and  to  a  liberal  extent.  Lord  Redesdale,  on  one  occasion'2  said, 
that  a  bill  for  a  new  trial  was  watched  by  equity  with  extreme  jealousy, 
and  it  must  see  that  injustice  has  been  done.,  not  merely  through  the  in- 
attention of  the  parties  ;  and  he  held  it  to  be  unconscientious  and  vexa- 
tious to  bring  into  a  court  of  equity  a  discussion  which  might  have  been 
had  at  law.  Even  in  the  old  cases,  before  new  trials  were  much  known, 
and  used  at  law,  the  court  of  chancery  proceeded  with  great  caution  in 
awarding  a  new  trial  at  law.  And  Lord  Ilardwicke,  in  Richards  v.  Symes, 
(2  Atk.  319,)  refused  a  new  trial,  on  the  suggestion  that  the  party  was  not 
apprised  of  a  particular  evidence,  and  therefore  not  prepared  to  meet  it. 
The  chancery  cases  have  generally  agreed  in  granting  a  new  trial  on  the* 
ry,  since  the  trial,  of  a  receipt  or  acquittance  in  full  of  the  demand.3 

It  is  only  in  cases  of  newly  discovered  evidence,  surprise,  fraud,  or 
being  deprived  of  the  means  of  defense  by  circumstances  beyond  the  con- 
trol of  the  party,  and  the  like,  that  will  in  any  case  warrant  the  interposi- 
tion of  equity  in  granting  a  new  trial  at  law.4  It  will  not  be  granted  to 
enable  a  party  to  impeach  a  witness,s  or  because  the  verdict  was  against 
evidence.  And  in  all  these  and  many  other  cases,  courts  of  law  are  now 
in  the  habit  of  granting  new  trials,  if  the  application  be  made  promptly, 
and  the  party  was  not  in  fault  in  going  to  trial  unprepared,  or  was  misled 
by  the  artifice  of  the  adverse  party.6 

When  the  remedy  at  law  is  adequate,  it  is  in  general  contrary  to  the 
settled  practice  of  the  court  to  interfere  by  an  injunction  from  a  court  of 
equity. 

A  court  of  equity  will  not  disturb  the  verdict  of  a  jury  because  the 

1  Floyd  v.  Jaynes,  G  J.  Oh.  R.  479.  Gales  v.  Shipp,  2  Uibb,  241.     Pegrain   v. 

"-  JJateman  v.  Willoe,   1   Sell.  &  Lefr.  King,  2  Hawks,  G05. 

201.  ■-  Woodworlh  v.  Van  Boskirk,  1  J.  CL. 

3  Smith  v.  Lowry,  1  J.  Ch.  R.  320,  324.  R.  432. 

Gain-borough  v.  Gitlbrd,  2  P.  Wins.  424.  "  Yandervoort  v.  Smith,  2  Caines,  155. 
Williams  v.  Lee,  3  Atk.  22:3.  Hollingsworth  v.  Napier,  3  id.  182.  Palm- 

4  Harrison    v.    IIani>on,    1    Litt    140.    er   v.    Mulligan,    id.  307.      Williams   v. 

Baldwin,  18  J.  R.  489. 


358  Of  Injunctions-.  LCh.  6 

damages  are  excessive.  Relief  in  such  cases  in  courts  of  law  is  plenary 
and  adequate.1  Nor  will  an  injunction  be  granted  to  stay  proceedings  at 
law  on  a  judgment,  on  the  ground  that  the  defendant  at  law  was  prevent- 
ed, by  public  business,  from  making  due  preparations  for.  and  attending 
at  the  trial,  and  that  the  plaintiff  had,  on  the  evidence  of  one  witness, 
whom  he  had  suborned  to  swear  falsely,  recovered  a  verdict  for  a  much 
larger  sum  in  damages  than  he  was  justly  entitled  to  ;  and  that  the  su- 
preme court  had  refused  to  grant  a  new  trial  in  the  cause.2 

On  the  same  principles,  if  the  same  court  have  granted  a  new  trial,  on 
conditions  which  the  party  failed  to  perform  within  the  time  prescribed 
by  the  rule,  and  such  failure  be  not  occasioned  by  the  act  of  the  adverse 
party,  or  by  unavoidable  necessity,  equity  will  not  grant  relief.3  And  it 
will  never  grant  relief  for  the  purpose  of  a  new  trial,  where  the  party 
lost  his  opportunity  of  defense  by  his  own  negligence. 

An  award  of  arbitrators  stands  on  the  same  footing,  in  this  respect,  as 
a  judgment.  The  court  will  not  grant  an  injunction  to  stay  an  action  at 
law,  on  an  award,  on  the  ground  that  the  plaintiff  was  surprised  by  the 
principal  witness  for  the  defendants  swearing  falsely  before  the  arbitra- 
tors, and  that  he  could  have  proved  the  falsehood  of  the  testimony,  if  the 
arbitrators  would  have  adjourned  the  hearing  for  that  purpose,  which 
they  refused  to  do,  though  requested  by  the  plaintiff,  who  offered  tc 
enlarge  the  time  of  making  the  award.4  The  rule  is  the  same  in  equity 
as  at  law,  where  a  new  trial  will  not  be  granted,  merely  to  give  a  party, 
who  has  gone  voluntarily  to  trial,  an  opportunity  to  impeach  the  testi 
mony  of  witnesses  against  him.5 


SECTION  III. 

OF  INJUNCTIONS  TO  RESTRAIN  THE  INDORSEMENT  OR  NEGOTIATION  OF  COY. 
MERCIAL  PAPER,  THE  SAILING  OF  SHIPS,  THE  TRANSFER  OF  STOCK,  1HB 
ALIENATION    OF   LAND,    OR    OF   SPECIFIC    CHATTELS. 

We  proceed,  in  the  next  place,  to  consider  some  of  the  cases  in  which 
courts  of  equity  will  interfere,  by  injunction,  to  restrain  the  indorsement 
of  promissory  notes  and  bills  of  exchange,  the  sale  of  land,  the  sailing  of 

1  M'Connell  v.  Hampton,  12  J.  R.  23-i.         *  Woodworth  v.  Van    Buskirk,  1   J 
1  Smith  v.  Lowry,  1  J.  Ch.  R.  320.  Ch.  R.  432. 

*  Dodge  v.  Strong,  2  id.  22S.  *  Id. 


Oh.  6.1  To  Restrain  Transfer  of  Bills.  359 

a  ship,  the  transfer  of  stock,  the  alienation  of  specific  chattels,  and  to 
compel  the  delivering  up  of  instruments,  &c. 

Relief  under  this  head  is  very  generally  accompanied  with  an  injunc- 
tion restraining  an  action  at  law. 

It  is  a  general  principle,  applicable  to  the  transfer  of  commercial  paper, 
as  bills  of  exchange,  promissory  notes  and  the  like,  that  a  transfer  before 
the  paper  is  dishonored  carries  no  suspicion  on  the  face  of  it,  and  the 
holder,  receiving  it  on  its  own  intrinsic  credit,  is  not  bound  to  inquire  into 
any  circumstances  existing  between  the  assignor  and  any  of  the  previous 
parties  to  the  bill  or  note,  as  he  will  not  be  affected  by  them,  unless, 
indeed,  the  circumstances  under  which  he  takes  the  same  be  such  as 
would  naturally  have  excited  the  suspicion  of  a  prudent  and  careful  man.1 
Hence,  should  the  note  or  bill  be  affected  with  fraud  in  its  inception,  but 
transferred  in  the  usual  course  of  business,  for  a  fair  and  valuable  con- 
sideration, parted  with  at  the  time,  and  without  notice  of  the  fraud,  or 
other  infirmity  in  the  title,  it  cannot  be  impeached  by  the  maker.2  The 
consideration  for  the  transfer,  in  order  to  shut  out  the  equities  of  the 
party  primarily  liable,  must  be  a  payment  of  value,  or  the  relinquishment 
of  some  available  security  or  valuable  right  on  the  credit  of  it.  The 
receiving  it  as  security  for  an  antecedent  debt,  or  as  a  nominal  payment 
for  such  debt,  without  giving  up  any  security  which  the  party  originally 
had  for  such  debt,  is  not  enough  for  this  purpose.3  A  party,  therefore, 
who  has  given  a  bill  or  note  under  circumstances  which,  as  between  him 
and  the  payee,  will  entitle  him  to  a  defense,  has  an  equity  to  restrain  the 
holder  from  putting  it  in  circulation  ;  for,  should  it  pass  into  the  hands  of 
a  bona  fide  transferree,  the  defense  of  the  former  will  be  shut  out.4  Upon 
this  principle,  where  a  note  had  been  given  by  the  plaintiff  to  the  defend- 
ant on  a  marriage  brocage  agreement,  the  lord  chancellor  restrained  the 
defendant  from  parting  with  or  assigning  it  until  further  order.s 

The  jurisdiction  in  these  cases  does  not  rest  solely  on  the  inadequacy 
of  the  remedy  at  law,  for  in  many  cases  instruments  have  been  ordered 
to  be  delivered  up,  and  their  circulation  restrained,  though  they  -were  void 
at  law.     But,  in  these  cases,  there  has  in  general  been  some  other  ground 


1  Brown   v.   Davis,  3   T.   R.   82,   per  'Id.     Swift  v.  Tyson,  1G  Peters,  R.  1, 

Bailer,  J.     O'Keefe  v.  Dunn,  6  Taunt,  contra. 

806,  per  Gibba,  Oh.  J.     Nelson  v.   Cow-  4  Smith  v.  Ilaytwell,  Ambler,   67.     1 

ing,  0  Hill,  330,  per  Bronson,  Ch.  J.  Fonb.  Ex.  B.  1,  eh.  1,  §  8,  n.  y.     Cliitty 

J  Bay   v.  Coddington,  5  J.  Ch.  R.    54.  on  Bills,  120. 

S.  0.  on  appeal,  20  J.  R.  637.     Story  v.  5  Smith  v.  Ilaytwell,  Ambler,  66. 
American   Life   In>.   Co.   11   Paige,  635. 
Stalker  v.  M'Donald,  6  Hill,  93. 


860  Of  Injunctions.  [Oh.  6. 

of  equity,  such  as  fraud,  the  necessity  of  a  discovery,  the  age  of  the  part} 
entitling  him  to  protection,  or  the  like,  which  called  for  the  interposition 
A  the  court.  Thus,  where  an  unconscionable  bargain  was  made  with  an 
infant  before  he  became  of  age,  and  a  note  of  hand  taken  from  him 
immediately  on  his  coming  of  age,  the  court,  on  a  bill  by  the  executor, 
ordered  it  to  be  cancelled.1  The  court,  however,  allowed  the  defendant 
to  bring  an  action  against  the  executor  for  the  original  consideration  of 
the  note,  if  brought  within  a  specified  time.  And  the  chancellor  said, 
that  the  attempt  to  substantiate  such  a  bargain  with  an  infant  was  a 
principal  ingredient  with  the  court  to  relieve. 

In  Minshaw  v.  Jordon,  (3  Bro.  18,  n.)  a  bill  was  filed  to  have  a  promis- 
sory note  delivered  up  and  canceled,  as  obtained  by  fraud,  and  without 
consideration.  The  master  of  the  rolls  retained  the  bill,  and  allowed 
the  defendant  to  proceed  at  law  upon  the  note,  and  the  verdict  being  found 
against  it,  he  then  decreed  it  to  be  given  up  to  the  plaintiff  to  be  can 
celled. 

The  question,  whether  an  instrument  void  on  its  face,  or  only  void 
upon  collateral  circumstances,  shall  be  delivered  up,  or  whether  the  par- 
ty shall  not  be  left  to  make  his  defense  at  law,  has  met  with  conflicting  de- 
cisions. Chancellor  Kent,  after  reviewing  the  cases,  inclines  to  think 
that  the  weight  of  authority,  and  the  reason  of  the  thing,  are  equally 
in  favor  of  the  jurisdiction  of  a  court  of  equity,  whether  the  instrument 
is  or  is  not  void  at  law,  and  whether  it  be  void  from  matter  appearing  on  its 
face,  or  from  proofs  taken  in  the  cause,  and  that  these  assumed  distinctions 
are  not  well  founded.2  And  in  the  case  before  him,  where  an  action  at 
law  was  brought  to  recover  a  bond  good  upon  its  face,  but  to  which  the 
obligor  had  a  good  defense  in  equity,  arising  from  matters  dehors  the  bond, 
he  ordered  it  to  be  delivered  up  and  canceled,  and  that  the  plaintiff  in 
the  action  at  law  be  perpetually  enjoined  against  the  prosecution  at  law. 
Lord  Eldon  evidently  favored  the  jurisdiction.  He  thought  it  no  objec- 
tion that  there  was  a  defense  at  law ;  that  it  extended  to  bills  to  deliver 
up  promissory  notes,  in  complicated  cases,  where  the  evidence  of  the  de- 
fense might  be  lost,  and  to  bills  to  have  void  policies  of  insurance  deliv- 
ered up.  And  he  thought  it  was  not  unwholesome,  that  an  instrument 
should  be  delivered  up,  upon  which  a  demand  may  be  vexatiously  made 
as  often  as  the  purpose  of  vexation  ma}  urge  the  party  to  make  it.3  In 
one  case,  in  New-York,  Chancellor  Kent  entertained  a  bill  to  set  aside 
and  cancel  a  deed,  on  the  ground  of  a  fraudulent  alteration,  fully  proved 

1  Brooke  v.  Gaily,  2  Atk.  34.  521,   522,  where   many  of  the  English 

Ilamilton  v.  Gumming    1  -T.  Cli.  P.    cases  are  reviewed. 

3  Bromley  v.  Holland,  7  Yea.  3  21. 


h.  6.]       To  Order  Deeds  to  be  Canceled.         361 

1 1  court,  and  which  had  been  also  proved  in  an  action  of  ejectment  brought 
by  the  defendant  against  the  plaintiff,  and  a  verdict  found  for  the  defendant 
in  possession.  In  that  case  the  defendant,  after  being  defeated  at  law, 
caused  the  deed  to  be  proved  by  an  aged  witness  and  recorded,  and  threat- 
ened to  bring  another  action  of  ejectment.  The  court  therefore  not 
only  ordered  the  deed  to  be  canceled,  but  enjoined  the  defendant  from 
using  the  record  as  evidence  of  title.1 

Chancellor  Sandford  entertained  jurisdiction  against  a  deed  fraudu 
lently  obtained  ;  and  he  directed  that  the  contested  deed  and  promissory 
note  be  brought  into  court  for  inspection,  and  he  restrained  proceedings  at 
law  during  the  pendency  of  the  bill  in  equity  for  the  same  matter.2  His 
decision  was  affirmed  by  the  court  of  errors,3  and  met  the  approbation  of 
Chancellor  Walworth.4  The  jurisdiction  to  set  aside  and  cancel  deeds 
and  other  instruments  fraudulently  obtained,  and  which  were  attempted 
to  be  set  up  inequitably,  has  been  fully  asserted  by  learned  judges 
in  other  cases.5  In  a  recent  case,  the  jurisdiction  was  held  to  apply  to  a 
bill  to  procure  the  cancellation  of  promissory  notes,  given  upon  an  illegal 
consideration.  Though  such  notes  are  void  at  law,  yet  equity  has  power 
to  decree  that  they  be  given  up.6 

But  a  court  of  equity  will  not  entertain  a  bill  to  stay  proceedings  in 
an  action  at  law  upon  a  promissory  note,  upon  the  ground  of  usury,  where 
the  bill  praying  for  an  injunction  alleges  no  defect  in  the  means  of  es- 
t:  blishing  his  defense  at  law,  and  seeks  for  no  discovery,  and  the  objection 
is  taken  by  the  defendant  in  his  answer  that  the  remedy  at  law  is  perfect.7 
The  objection  that  there  is  nothing  in  the  complainant's  bill  to  show  that 
he  has  not  a  perfect  defense  at  law  upon  the  note,  is  an  objection  which 
g  iee  to  the  jurisdiction  of  the  court  of  equity  ;  and  such  objection,  when 
taken  by  demurrer,  or  insisted  on  in  the  answer,  is  fatal  to  the  complain- 
ant's right  to  sue  in  a  court  of  equity.8 

Nor  will  the  court  enforce  the  penal  laws  of  the  state  or  the  by-laws 
of  a  corporation,  by  injunction,  unless  the  act  sought  to  be  restrained  is 
a  nuisance.9  Nor  will  it  restrain,  by  that  process,  the  publication  of  a 
libel,  though  its  publication  might  injure   the  business  or  character  of 

1  Bushnell  v.  Harford,  4  J.  Ch.  R.  301.        e  Thompson  v.  Graham,  1  Paige,  384. 

3  Apthorpe  v.  Coinstock,  Ilopk.  143.  7  Minturn  v.  Farmers1  L.  and  T.   Co., 
"  S.  C.  in  error,  8  Cowen,  3S6.  3  Comst.  498. 

4  S.  C.  2  Paige,  482.  8  Id.     Morse  v.  Hovey,  9  Paige,  198. 

*  Loomis  v.  Cliue.  4  Barb.  453.  liar-  '  Mayor  of  Hudson  v.  Thome,  7  id. 
rington  v.  Bigelow,  11  Paige,  349.  2G4. 

Eq  Jub.  46 


i 


3G2  Of  Injunctions.  [Ch.  6 

the  plaintiff.1     Nor  will  it  restrain  the  collectioi  of  a  tax.  where   the 
assessment  is  merely  erroneous  and  not  void.2 

An  injunction  will  he  granted  against  the  sale  of  real  estate,  when  the 
ends  of  justice  require  it.  Accordingly,  where  the  owners  of  land, 
through  which  a  turnpike  road  was  laid,  were  entitled  tc  construct  the 
road,  under  the  inspection  of  the  company,  by  a  certain  time,  in  lieu  of 
paying  assessments  by  the  commissioners,  and  where  the  latter,  without 
giving  the  requisite  time,  were  proceeding  to  sell  the  lands  of  the  plain- 
tiffs to  raise  the  assessment,  the  court  granted  a  temporary  injunction 
to  enable  the  latter  to  build  the  road  without  such  sale.3  So  a  vendor 
defendant  to  a  bill  for  specific  performance  of  an  agreement  for  the  sale 
of  an  estate,  will  be  restrained  from  conveying  the  legal  estate,  on  the 
ground  that  the  plaintiff  might  thus  be  put  to  expense,  by  the  necessity 
of  making  another  party,  when  the  cause  might  be  just  ready  for 
hearing.4 

In  most  countries,  it  is  said  to  be  in  the  power  of  the  majority,  either  in 
number  or  value,  of  the  part  owners,  to  send  the  ship  on  a  voyage.  But 
the  court  of  admiralty  has  authority  to  arrest  and  detain  the  ship,  upon 
the  application  of  a  dissenting  part  owner,  until  security  be  given  by  the 
other  part  owners  to  the  full  value  of  his  share.  But  if  the  respective 
shares  be  not  apparent,  and  their  amount  be  a  subject  of  dispute,  it  has 
been  said  that  it  has  not  then  the  power  to  order  security  to  be  given. 
But,  in  such  case,  equity  will  interfere,  and  by  injunction  restrain  the 
sailing  of  the  ship,  till  the  amount  of  the  share  for  which  security  is  to 
be  given  shall  be  ascertained.  But  the  court  will  decline  to  interfere,  if 
the  plaintiff  has  been  guilty  of  delay.5 

Another  subject,  to  which  the  remedy  by  injunction  has  been  applied, 
is  to  restrain  the  transfer  of  stock.  In  one  case,  Lord  Eldon  restrained 
by  injunction  the  transfer  of  stock  standing  in  the  name  of  the  defendant, 
who  was  attorney  and  steward  of  the  plaintiff,  upon  strong  proof  that 
it  was  the  produce  of  the  money  of  his  principal.  In  that  case,  the 
sum  which  the  defendant  had  invested  in  government  securities  was  very 
large,  and  the  agent  had  not  discriminated  between  his  own  funds  and 


a 


1  Brandeth  v.  Lance,  8  Paige,  24.  *  Ecbliff  v.  Baldwin,  16  Ves.  267. 

2  Livingston  v.  Hollenbeck,  4  Barb.  9.  6Haly  v.Goodson,2Heriv.  77.  Christie 
Van  Rensselaer  v.  Kidd,  id.  19.  v.  Craig,  id.  137.     Colly,  on  Part.  678-9. 

3  Coucb  v.  Ulster  and  Orange  Turnpike*,  Abbott  on  Ship.  104,  and  see  notes. 
4  J.  Cb.  R.  26. 


Ch.  6.]  To  Restrain  Transfer  of  Stock.  &r„  3G3 

those  of  his  principal.  He  bad  rendered  no  account  for  m&ny  years  ; 
and  the  court,  for  these  reasons,  thought  that  the  defendant,  having  im- 
properly confounded  the  money  of  the  principal  with  his  own,  in  the 
purchase  of  stock,  should  not  be  permitted  to  dispose  of  it,  until  he 
showed,  by  his  answer  and  an  account,  what  belonged  to  himself  and  what 
to  the  plaintiff.1 

There  is  much  good  sense  in  the  rule,  that  casts  the  burden  of  proof 
npon  the  guilty  party  in  case  of  the  confusion  of  goods.  If  an  inconven 
icnce  or  a  loss  results  from  the  agent's  confounding  his  own  money  with 
that  of  his  principal,  it  should  be  borne  by  the  former ;  and  if  he  can- 
not distinguish  his  own  from  the  property  of  his  employer,  he  should 
lose  it.2  So,  where  there  are  opposite  claims  to  the  stock  under  different 
wills,  which  are  in  contest,  the  court  will  restrain  the  transfer  and  ap- 
point a  receiver.3  So,  also,  where  there  is  a  well  founded  apprehension 
that  stock  in  the  funds  will  be  transferred,  and  its  proceeds  removed 
beyond  the  reach  of  creditors,  or  beyond  the  jurisdiction  of  the  court 
a  transfer  will  be  restrained  by  injunction.  Thus,  where  French  stock, 
the  property  of  the  bankrupt,  was  transferred  by  him  to  his  wife,  who 
afterwards  transferred  it  to  her  three  sisters ;  the  wife,  who  had  a 
general  power  of  appointment  over  moneys  standing  in  the  name  of  trus- 
tees in  the  English  funds,  made  a  will,  by  which  she  exercised  that  power, 
and  died  in  her  husband's  lifetime  ;  one  of  the  three  sisters,  who  was 
also  an  appointee  and  residuary  lagatee,  and  usually  resided  in  France, 
took  out  administration  to  her,  with  the  will  annexed:  an  injunction  was 
granted,  at  the  suit  of  the  assignee  of  the  bankrupt,  to  restrain  the 
trustees  from  transferring  any  of  the  stocks  in  the  English  funds,  over 
which  the  deceased's  power  of  appointment  extended.'1 

It  has  already  been  shown,  under  other  heads,  that  an  injunction  will 
be  granted,  at  the  instance  of  a  judgment  creditor,  who  has  exhausted 
his  remedy  at  law,  to  restrain  the  defendant  from  parting  with  his  property 
and  for  the  appointment  of  a  receiver.  In  such  case  the  command  is 
general,  and  is  not  restricted  to  any  article  in  particular. 

But  there  may  be  cases  where  the  value  of  the  article  consists  in  its 
being  a  matter  of  curiosity  and  antiquity  ;  and  where  the  recovery  of  its  in- 
trinsic value  in  money  would  be  no  satisfaction  to  the  owner ;  and  where, 

1  Lord  Chedworth  v.  Edwards,  8  Yes.        '  King  v.  King,  6  id.  172. 
46-  '  Stead  v.  Clay,  4  Euss.  550. 

5  Hart  v.  Ten  Eyck,  2  J.  Ch.  E.  108. 
Lnptnn  v.  White,  15  Ves.  432. 


304  Of  Injunctions.  [Ch.  6. 

too,  there  is  danger  of  its  being  injured  and  defaced  in  the  mean  time, 
In  such  case,  the  action  of  replevin,  or  its  substitute  under  the  code,  i3 
inadequate  ;  and  no  remedy  is  complete  which  does  not  require  the  spe~ 
cine  article  to  be  delivered  to  the  plaintiff,  and  restrain  the  defendant 
in  the  mean  time  from  marring  and  defacing  it.  In  one  case,  before  Lord 
Talbot,1  the  plaintiff  became  entitled,  as  a  treasure-trove,  within  his  ma 
nor,  to  an  old  altar-piece,  made  of  silver,  remarkable  for  a  Greek  inscrip- 
tion and  dedication  to  Hercules,  and  it  came  to  the  defendant's  possession 
with  notice  of  the  plaintiff's  title.  The  plaintiff  could  have  recovered  it? 
value  in  an  action  of  trover,  but  still  the  chancellor  thought  he  was  en- 
titled to  relief  in  equity.  The  bill  also  was  to  prevent  the  defendant  from 
defacing  the  altar-piece,  which  would  have  depreciated  its  value,  and  per- 
haps destroyed  its  identity.  The  chancellor  overruled  a  demurrer  to  the 
bill,  thus  affirming  the  jurisdiction  of  equity. 

The  right  to  be  protected  in  the  use  and  beneficial  enjoyment  of  prop- 
erty in  specie,  is  not  confined  to  articles  possessing  any  peculiar  or  in- 
trinsic value.  In  a  recent  case,  where  certain  specific  chattels  were 
placed  in  the  possession  of  an  agent  to  be  held  for  the  plaintiff,  and  the 
agent  in  violation  of  his  duty  to  his  principal  contracted  to  sell  them  to  a 
third  party.  Avhereby  the  plaintiff's  title  would  be  embarrassed,  the  court, 
at  the  instance  of  the  principal,  restrained  by  injunction  the  agent  from 
committing  the  threatened  act  of  alienation.2  The  fiduciary  relation 
which  the  parties  bore  to  each  other,  gave  jurisdiction  to  the  court  in 
that  case.  The  threatened  mischief  was  also  another  source  of  juris- 
diction. 

In  general,  the  cases  where  equity  interposes  by  injunction  to  compel 
the  delivering  up  of  a  specific  chattel,  or  to  protect  it  from  injury,  or  from 
being  alienated,  are  cases  where  the  chattel  has  some  peculiar  value,  as  an 
article  of  curiosity,  or  memorial  of  affection,  or  insignia  of  office  ;  or  where 
the  parties  have  stood  in  some  relation  of  confidence  to  each  other  ;  or  the 
case  falls  under  some  other  head  of  equit}T.  The  altar-piece,  in  the  Duke 
of  Somerset  v.  Cookson,  and  silver  tobacco  box,  in  Fells  v.  Read,  were  of  the 
former  description  ;  the  masonic  dresses  and  decorations  in  Lloyd  v.  Loar- 
ing,3  were  of  the  third  character  ;  and  the  other  cases  we  have  cited 
fall  under  the  last  head.  If  there  be  nothing  in  the  case  but  title  to  the 
chattel  in  the  plaintiff  on  the  one  side,  an  unlawful  withholding  of  pos- 
session by  the  defendant,  and  the  chattel  be  one  capable  of  being  estima- 

1  Duke  of  Somerset  v.  Cookson,  3  P.        "  Wood  v.  Bowcliffe,  3  Hai3,  308. 
"Wms.   390.     Fells   v.    Read,   3  Yes.  70.        3  G  Ves.  773. 
Lloyd  v.  Loaring,  6  id.  77-i. 


Ch.  6.J  To  Deliver  up  Chattels.  366 

ted  in  iLoney  and  compensated  in  damages,  there  will  be  no  occasion  t 
depart  from  the  ordinary  remedies  at  law. 

The  cases  already  cited  show  that  equity  has  jurisdiction  to  order  chat- 
tels to  be  delivered  up.  Some  of  the  cases  on  this  subject  were  adverted 
to  under  the  chapter  on  specific  performance  of  agreements.  But  the 
jurisdiction  is  not  confined  to  cases  resting  in  contract,  and  will  frequent- 
ly be  necessary  where  possession  is  wrongfully  withheld.  Lord  Eldon 
said,1  in  discussing  a  demurrer  to  a  bill  to  have  the  dresses,  decorations 
books,  papers  and  other  effects  of  a  masonic  society  delivered  up,  that  he 
had  no  doubt  of  the  jurisdiction  of  the  court  to  have  a  chattel  delivered 
up,  though,  in  the  case  before  him,  the  demurrer  was  allowed  for  defect  of 
parties. 

The  principle  on  which  relief  is  granted  in  these  cases  is  substantial 
ly  the  same  as  that  which  controls  the  court  in  restraining  the  alienatior 
of  a  chattel.  It  is  based  upon  the  peculiar  nature  of  the  chattel,  or  the 
relation  which  the  parties  bare  to  each  other.  If  the  value  of  the  chattel 
depends  on  other  circumstances  than  those  which  regulate  the  price  of 
articles  in  the  commercial  world ;  if  it  be  prized  as  the  gift  of  a  friend ; 
or  if  it  has  been  held  in  trust,  a  foundation  is  in  either  case  laid  for  the 
iurisdiction  of  the  court.  In  the  case  before  Lord  Loughborough,  the 
principles  are  disclosed  which  usually  govern  the  courts  in  cases  of  this 
kin  1.  In  that  case,2  the  plaintiffs  were  members  of  a  club,  which  con- 
sisted of  persons  who  had  served  the  office  of  overseer  of  the  poor  of  their 
parish.  The  society  had  been  for  a  long  period  in  possession  of  a  silver  to- 
bacco box,  inclosed  in  two  large  silver  cases,  all  which  were  adorned  with  sev- 
eral engravings  of  public  transactions  and  heads  of  distinguished  persons. 
The  ornaments  which  had  been  added  by  different  overseers,  during  the  time 
the  box  and  cases  remained  in  their  custody,  began  in  the  year  1713. 
This  box  and  the  cases  were  always  kept  by  the  overseer  for  the  time  be- 
ing :  who,  upon  coming  into  office,  received  them  from  the  church-warden 
with  a  particular  charge,  in  which  he  was  enjoined,  under  a  penalty,  to 
produce  them  at  all  meetings  of  the  society,  and  to  deliver  them  up,  on 
going  out  of  office,  to  the  senior  church-warden,  to  be  by  him  delivered  to 
the  succeeding  overseer.  They  were  delivered  in  the  usual  form  to  the  de- 
fendant on  his  coming  into  office  as  overseer.  On  going  out  of  office  he 
refused  to  deliver  them  up,  unless  the  vestry  would  pass  his  accounts  :  in 
which  they  had  refused  to  allow  him  certain  payments.  Upon  this  a 
meeting  was  called,  and  it  was  resolved,  by  those  members  who  attended, 

1  Lloyd  v.  Loaring,  C  Yes.  777.  '  Fells  v.  Read.  3  id.  70. 


366  Of  Injunctions.  [Ch.  6 

that  legal  steps  should  be  taken  ;  and,  after  some  negotiation,  an  action 
was  brought  and  the  defendant  was  arrested.  Two  of  the  number  in 
whose  names  the  action  was  brought  executed  a  release  to  the  defendant, 
who  thereupon  delivered  the  box  to  one  of  them,  and  the  bill  in  chancery 
was  brought  against  the  party  originally  holding  the  box  and  the  two 
members  who  gave  the  release,  to  have  the  box  and  cases  delivered  up. 

Lord  Loughborough  said,  in  all  cases  where  the  object  of  the  suit  is 
not  liable  to  a  compensation  by  damages,  it  would  be  strange  if  the  law 
did  not  afford  a  remedy.  It  would  be  great  injustice  if  an  individual 
cannot  have  his  property  without  being  liable  to  the  estimate  of  people, 
who  have  not  his  feelings  upon  it. 

He  then  proceeds  to  the  peculiar  circumstances  of  this  case.  The  box 
was  delivered  to  and  accepted  by  the  defendant  upon  an  express  trust  to 
keep  it  and  produce  it  at  the  meetings  of  the  club,  and  at  the  expiration 
of  his  office  to  deliver  it  over  to  the  senior  church-warden,  in  order  that 
he  might  give  it  to  the  next  overseer.  He  was  thus  a  depositary  upon  an 
express  trust,  and  he  does  not  perform  the  trust.  Upon  the  common 
ground  of  equity,  there  was  a  right  in  the  plaintiffs  to  have  called  upon 
him  during  the  term  to  use  it  according  to  the  trust.  If  he  had 
not  produced  it  at  the  meeting,  he  could  have  been  compelled  to  produce 
it.  So  if  he  retains  it  after  the  expiration  of  the  term,  he  can  be  com- 
pelled to  use  it  according  to  the  trust.  And,  in  conclusion,  his  lordship  said : 
"  Where  the  right  is  not  to  use  the  thing  as  his  own,  but  coupled  with  a 
trust  to  deliver  it  at  a  certain  time,  there  is  a  clear  jurisdiction  upon  the 
ordinary  equity  to  compel  the  execution  of  the  trust  by  the  delivery  of 
the  thing  at  the  time." 

In  this  case  there  was  an  undoubted  remedy  at  law.  And  the  juris- 
diction of  a  court  of  equity  was  sustained  on  two  grounds :  first,  the 
nature  of  the  chattel  not  being  susceptible  of  an  estimate  in  damages, 
and  second,  the  violation  of  an  express  trust. 

In  this  state,  whenever  a  person  shall  be  removed  from  office,  or  the 
term  of  his  office  shall  expire,  he  is  required  to  deliver  over  to  his  suc- 
cessor, on  demand,  all  the  books  and  papers  in  his  custody  as  such  officer, 
or  in  any  way  appertaining  to  his  office ;  and  his  refusal  to  do  so  is  a  mis 
demeanor.1  The  delivery  of  these  books  and  papers  may  also  be  com 
pelled  by  a  judge  of  the  supreme  court  or  county  judge  of  the  county,  if 
the  title  of  the  applicant  be  clear  and  free  from  reasonable  doubt.  But 
if  the  title  to  the  office  is  in  dispute,  it  must  be  tested  by  a  proceeding 
in  the  nature  of  a  quo  warranto.*     These  statute  remelies  would  seem 

1 1  R.  &  124.  J  Id.  §  51.     The  People  v.  Stevens,  5 

Hill,  616.     Code,  §428. 


Ch.  6.]  To  Restrain  Wasting  Assets.  367 

to  render  unnecessary  a  resort  to  equity,  in  cases  of  this  kind,  if  its  juris- 
diction be  not  entirely  superseded.  But  as  the  jurisdiction  of  equity  is 
not  expressly  taken  away,  perhaps  the  statute  remedy  is  merely 
cumulative. 


SECTION  IV 

OF  TC.' UNCTIONS  TO  RESTRAIN  THE  WASTING  OF  ASSETS,  OR  OTHER  PROPERTY 
PENDING  THE  LITIGATION:  RESTRAINING  TRUSTEES  FROM  ASSIGNING,  AND 
A  PARENT  FROM  REMOVING  HIS  CHILD  OUT  OF  THE  JURISDICTION,  AND 
THE    WARD    FROM    MARRYING,    WITHOUT    CONSENT. 

We  will  now  proceed  to  notice  cases  in  which  equity  restrains  by  in- 
junction the  wasting  of  assets,  or  other  property,  pending  the  litigation. 

If  the  contest  be  as  to  the  proof  of  the  will,  or  relative  to  granting  let- 
ters testamentary,  or  of  administration  with  the  will  annexed,  of  of 
administration  in  cases  of  intestacy,  or  where,  by  reason  of  absence  from 
this  state  of  any  executor  named  in  a  will,  or  for  any  other  cause,  a  delay 
is  produced  in  granting  such  letters,  the  surrogate  authorized  to  grant 
them  may,  in  his  discretion,  issue  special  letters  of  administration, 
authorizing  the  preservation  and  collection  of  the  goods  of  the  deceased.1 
The  administration  pendente  lite  was  always  granted  in  England  })j  the 
ordinary,  in  case  of  a  controversy  in  the  spiritual  court  concerning  the  right 
of  administration  to  an  intestate.2  Such  officer  was  treated  merely  as  an 
officer  of  the  court,  and  held  the  property  only  till  the  termination  of  the 
suit.3  But  notwithstanding  this  power  of  the  ecclesiastical  court,  a  court 
f  f  equity  would,  during  a  litigation  for  probate  or  administration,  enter- 
tain a  bill  fur  the  mere  preservation  of  the  property  of  the  deceased  till 
the  litigation  was  determined,  and  appoint  a  receiver.4 

In  analogy  to  that  practice,  it  would  seem  that  a  court  of  equity,  in  this 
state,  might  still  interpose  by  injunction  to  protect  the  property  pending 
the  litigation.  The  power  given  to  the  surrogate,  though  in  most  cases 
adequate,  does  not  exclude  the  jurisdiction  of  courts  of  equity,  which  is 
in  general  more  effective. 

The  jurisdiction  will  also  be  exercised  against  an  executor  or  adminis- 
trator who  puts  the  assets  in  jeopardy  by  his  insolvency,  either  existing 

1  Laws  of  1837,  p.  528,  ?  20.  "  Kin-  v.  Kin?,  G  Yes.  172.     Atkinson 

M  Will.  Ex.811.  v.  Ilen.-haw,  2  Yes.  &,  B.  85.     Ball   v 

*  In  Roods  of  Grave?,  1  Hagg.  313.  Oliver,  id.  90. 


368  Of  Injunctions.  [Ch.  6 

or  impending.1  So,  where  the  husband  of  an  executrix  was  in  the  West 
Indies,  and  in  indifferent  circumstances,  and  not  a  responsible  person,  if 
the  executrix  should  get  the  assets  into  her  hands,  and  should  waste  them, 
the  plaintiff  would  have  no  remedy,  because  the  husband  must  be  joined 
in  the  action.  And  the  court  accordingly  restrained  the  executrix  from 
getting  possession  of  the  assets,  and  appointed  a  receiver  with  power  to 
bring  actions  in  the  name  of  the  executrix.2 

The  occasion  for  a  resort  to  equity,  in  such  cases,  will  not  as  often  occur 
in  the  state  of  New- York,  since  the  revised  statutes,  as  formerly.  By 
these  statutes,  a  non-resident  executor  is  required  to  give  a  bond,  like  that 
required  of  administrators,  before  letters  testamentary  can  be  issued  to 
him.3  And  in  other  cases,  if  an  executor  becomes  incompetent  by  law  to 
serve,  or  his  circumstances  arc  so  precarious  as  not  to  afford  adequate  se- 
curity for  his  due  administration  of  the  estate,  or  he  has  removed  or  is 
about  to  remove  from  the  state,  the  surrogate  is  empowered,  on  the  appli- 
cation of  any  person  interested  in  the  estate,  to  require  from  the  executoi 
a  bond  like  that  required  by  law  of  administrators,  and,  on  neglect  1c 
comply  with  the  order,  to  supersede  the  letters  testamentary  and  isste 
letters  of  administration  to  a  proper  person,  with  the  will  annexed.4  Tte 
mere  fact,  that  the  executor  has  not  in  his  own  right  an  estate  equal  to 
that  which  he  is  about  to  administer,  is  not  enough  to  warrant  the  surro- 
gate to  interfere.  If  there  be  no  ground  for  supposing  that  the  trust 
funds  in  his  hands  are  in  danger  from  his  improvidence,  or  Avant  of  pecu 
niary  responsibility,  he  cannot  be  required  to  give  security.5 

The  jurisdiction  of  courts  of  equity  in  cases  of  this  kind  arises  from 
their  general  jurisdiction  over  trusts,  which  cannot  be  taken  away  butb}T 
express  legislation.  The  special  power  given  to  surrogate's  courts,  in  these 
cases,  is  merely  auxiliary  to  that  of  the  supreme  court,  now  having  the 
same  jurisdiction  in  equity  that  was  formerly  possessed  by  the  court  of 
chancery. 

It  is  under  this  same  jurisdiction  that  a  trustee  will  be  restrained 
from  assigning  the  legal  estate,  in  those  cases,  where  trusts  are  allowed 
by  law  ;  and  assignees  may  be  restrained  from  making  dividends.6 

The  court  of  chancery  in  England  has  restrained  by  injunction  the 

'  Elmendorff  v.  Lansing,  4  J.  Ch.   R.  "  Taylor  v.  Allen,  2  Atk.  213. 

565.     Ballon  v.  Earnley,  2  P.  Wms.  163.  3  2  R.  S.  70,  §  7. 

Taylor  v.   Allen,  2  Atk.  213.      Lake   v.  *  Id.  72,  §§  18,  19,  20. 

Delambert,    4   Yes.   592.     Mansfield   v.  5  Mandeville  v.  Mandeville,    8  Paige, 

Shaw,  3  Mad.  Ch.  R.  100.     Utterson  v.  475.  Cclegrove  v.  Ilorton,  11  id.  2G1. 

Mairs,  2  Ves.  jr.  93.     Middleton  v.  Dods-  6  2  Eden  on  Inj.  ov  Waterman,  351. 
well,  13  Ves.  266. 


Ch.  6.]  To  Prevent  Waste.  3G9 

father  from  moving  his  infant  child  out  of  the  kingdom.1  And  though 
the  father  has  a  natural  and  legal  right  to  the  control  of  his  infant  chil- 
dren,'2 yet  it  must  be  exercised  subordinate  to  the  power  of  the  court,  to 
take  the  child  from  him,  in  cases  of  gross  habits  of  drunkenness  and  blas- 
phemy.3 But  this  branch  of  the  subject  belongs  more  appropriately  to 
another  head,  as  we  are  here  only  treating  of  the  means  by  which  the  power 
is  carried  out. 

"Where  it  appears  that  an  infant  ward  is  about  to  make  a  marriagf 
without  the  consent  of  the  court,  an  injunction  will  be  granted  not  only 
to  restrain  the  marriage,  but  also  all  communication  with  an  infant,  and 
all  intercourse,  either  personal  or  by  letter  ;  and  if  the  guardian  is  sus- 
pected of  countenancing  the  intended  marriage,  he  will  be  restrained  from 
giving  his  consent  without  the  leave  of  the  court.4 

The  guardianship  of  a  daughter  determines  with  her  marriage,  as  a 
general  rule  ;  though  a  doubt  has  been  expressed  whether  a  female  ward 
of  court  be  necessarily  discharged,  upon  her  marriage,  from  the  protec- 
tion of  the  court,  without  a  special  order  from  the  court.5 

If  a  man  marry  a  ward  of  the  court,  without  the  consent  of  the  court, 
he  shall  be  committed  for  such  contempt,  though  it  appears  that  he  knew 
not  that  she  was  a  ward  of  the  court.  Every  one,  it  seems,  is  bound  tc 
take  notice  of  the  appointment  by  the  court  as  of  a  lis  pendens.*  And 
there  must  be  a  proper  settlement  made  on  the  wife,  before  the  contempt 
can  be  cleared.7 


SECTION  V. 

4 
OF    IXJUXCTIOXS    TO    PREVEXT    WASTE    AXU    TRESPASS. 

Another  and  frequent  ground  of  injunction  is  the  prevention  of  waste. 
It  i-  not,  in  this  case,  necessary  to  wait  until  the  waste  has  been  commit- 
ted. A  mere  threat  to  commit  waste  is  a  sufficient  cause  for  an 
injunction.8 

"\\  astc,  at  common  law,  was  either  voluntary  or  per?nissivc.     By  ruluti- 

'De  Manneville  v.  De  Manneville,  10  id.  451.     2  Fonb.  Eq.  13.  2,  pt.  2,  ch.  2. 

Ves.  64.  §  1,  and  notes. 

parte  ITopkins,  3  P.  Wms.  15-4.  s  Matter  of  "Whitaker,  4  J.  Ch.  R.  380. 

5  Per  Lord  Eldon,  10  Ves.  62.  c  Herbert's  ease,  3  P.  "\Vrns.  115.    But 

4  Eden  on  Inj.  349.     Pearce  v.  Crutch-  Jer  v.  Freeman,  Ambler,  301. 

field,  14  Ves.  20G.     Water  v.  Yorke,  19  '  Stevens  v.  Savage,  1  Vps.  jr.  154. 

8  Gibson  v.  Smith,  2  Atk.  182. 
Eq.  Jcr.  47 


STO  Of  Injunctions.  [Ch.  6. 

tary  waste,  was  meant  the  actual  and  designed  demolition  of  the  lands 
woods  and  houses  :  while  permissive  waste  arose  only  from  mere  negli- 
gence, and  want  of  sufficient  reparation.1  In  general,  whatever  does  a 
isting  damage  to  the  freehold  or  inheritance,  is  waste.2  But  the  doc- 
trine of  waste,  as  understood  in  England,  is  not  applicable  to  a  new  and 
unsettled  country.  Where  the  whole  of  a  farm,  when  leased,  is  in  a  wild 
and  uncultivated  state,  with  the  exception  of  a  few  acres,  and  for  the  use  of 
it  the  lessee  agrees  to  pay  rent,  the  parties  are  held  to  have  intended  that 
the  lessee  should  be  at  liberty  to  fell  part  of  the  timber,  in  order  to  fit 
the  land  for  cultivation.  But  this  right  will  not  authorize  the  lessee  tc 
destroy  all  the  timber,  and  thereby  irreparably  injure  the  premises,  or 
permanently  injure  their  value.3 

"Where  nearly  the  whole  demised  premises  are  covered  with  timber,  and 
cannot  be  enjoyed  without  a  portion  of  it  is  cleared  up.  to  what  extent 
such  clearing  may  be  carried,  before  the  tenant  is  guilty  of  waste,  must, 
in  an  action  at  law,  be  determined  by  the  jury.  Rules  of  good  husbandry 
would,  doubtless,  require  that  enough  of  the  land  should  be  left  in  \yoods 
to  supply  the  farm  with  all  necessary  timber,  to  keep  the  buildings  and 
fences  in  repair,  and  probably  to  erect  new  ones,  if  necessary,  and  to  sup- 
ply the  farm  with  fuel.  But  the  tenant  could  not,  under  such  a  lease 
cut  down  timber  merely  for  the  purpose  of  sale  and  profit,  without  refer 
ence  to  preparing  the  land  for  cultivation.4 

Rules  somewhat  similar  have  been  adopted  on  the  same  subject  ii 
several  of  the  states.5 

Where  land  is  annexed  to  a  furnace,  cutting  wood  sufficient  to  supply 
the  furnace  has  been  held  not  to  be  waste.6 

Waste  in  timber  consists  in  cutting  down,  lopping,  topping,  or  doing 
any  act  wheneby  it  may  be  brought  to  decay.  In  England,  oak,  ash  and 
elm  are  timber  in  all  places,  and  by  custom  of  different  countries,  birch, 
beech,  walnut,  willow,  hornbean,  blackthorn.  &c.7  In  this  state,  pine 
timber  has,  perhaps,  more  frequently  than  any  other,  been  protected  by 
injunction :  and  it  constitutes  the  greatest  portion  in  bulk  and  value  of 
the  timber  of  commerced 

1  3  Bl.  Com.  223.  5  Waterman's  note,  Eden  on   Injunc. 

5  2  id.  2S1.  179. 

s  Ividd  v.  Dennisson,  6  Barb.  9.    Jack-  6  Den  v.  Kinney,  2  South,  552, 

Bon  v.  Brownson,  7  J.  E.  227.  7  Eden  on  Inj.  eh.  3. 

4  Kidd  v.  Dennison,  6  Barb.  10.     Jack-  8  Watson  v.  Hunter,  5  J.  Ch.  E.  169; 

son  v.  Brownson,  7  J.  E.  227.     Cooper  where  injunction  was  granted  to  restrain 

v.  Stower,  9  id.  833.     Mooers  v.  Waite,  the  cutting  of  pine  timber.     Ensign  v. 

8  V,r end.  107.  Colburn,    II   Paige,  503;   the  timber ifl 

controversy  was  [tire  tin 


Ch.  6.j  To  Prevent  Waste  371 

The  cutting  of  many  sorts  of  trees,  which  are  not  otherwise  timber, 
may  be  waste  ;  as  if  they  be  planted  or  be  preserved  for  the  support  of  a 
bank,  or  as  a  shelter  for  a  house,  and  the  like,  or  fruit  trees  in  a  garden, 
or  trees  planted  or  preserved  for  ornament' 

In  general,  courts  of  equity  only  interfere  to  prevent  future  waste,  and 
not  to  control  the  disposition  of  that  already  cut,  before  an  injunction  was 
applied  for,2  But  an  injunction  was  allowed  to  restrain  the  removal  of 
timber  already  cut,  on  the  application  of  the  mortgagee  against  the  mort- 
gagor, in  a  case  where  the  hitter  had  been  decreed  a  bankrupt,  and  the 
timber  constituted  the  principal  value  of  the  premises,  and  was  cut  by 
the  mortgagor  in  an  unconscientious  manner,  and  with  a  view  of  defraud* 
ing  the  mortgagee  out  of  his  security.  In  that  case,  too,  the  mortgagor 
had  no  longer  any  interest  in  the  mortgaged  premises,  nor  any  hope  of 
paying  the  debt.3 

It  is  not  waste  in  a  tenant  for  life  to  cut  down  timber  trees  for  the 
purpose  of  making  necessary  repairs  on  the  estate,  and  to  sell  them  and 
purchase  boards  with  the  proceeds  for  such  repairs,  provided  this  be 
proved  to  be  the  most  economical  mode  of  making  the  repairs.4  EveTy 
tenant  for  life,  unless  restrained  by  covenant,  has  a  right  to  koitsc-bot-c, 
fire-botc,  pfongh-botc,  and  fence-bote.  This  is  a  right  to  take  from  the 
premises  such  wood  as  is  necessary  for  fuel,  for  fences,  and  for  agricul- 
tural erections.11 

It  may  in  general  be  said  that  waste,  which  ensues  from  the  act  of  God, 

i»  excusable.     Thus,  if  a  house  fall  by  a  tempest,  or  be  abated  by  light- 

:   if  apple  trees   be  torn  up  by  a  great  wind,  and  the  lessee  after- 

fca  them  up  ;  if  the  banks  of  a  river  be  well  repaired  by  the  les- 

and   the  water   notwithstanding  subvert   them,   and   surround   the 

meadow,  by  which  it  has  become  rushy;   in  these,  and  the  like  cases,  it 

is  not  waste  in  the  tenant.6 

At  common  law,  a  tenant  for  life,  without  impeachment  -of  waste,  was 
treated  like  the  owner  of  the  estate,  except  as  to  the  duration  of  his 
estate.  He  might  pull  up,  or  cut  down  wood  and  timber,  or  dig  mines, 
&c.  at  his  pleasure.7  But  whatever  effect  this  clause  in  a  lease  may  hare 
in  an  action  at  law  to  recover  the  place  wasted,  or  damages,  or  both,  courts 
of  equity  will  restrain  the  tenant  from  doing  any  act  destructive  of  the 


e  Lift.  53,  a.     Uob.  210.  •  Coke  I.itt.  416. 

3  Watson  v.  Hunter,  5  J.  Cli.  R.  109.  «  Bac  Ab.  ^aste,  F. 

1  Ensign  v.  Oottrara,  11  Paige,  504.  '  Id.  N, 

*  Lootafev.  Wilbur,  5  Mason,  IS.    Bac 
Ab.  Waste,  F.  contra. 


872  Of  Injunction's.  [Ch. 

estate  granted,  and  from  cutting  down  trees  planted  for  ornament  01 
shelter,  and  from  destroying  the  house  itself.1 

With  regard  to  what  shall  be  deemed  ornamental,  it  seems  to  be  settled 
that  it  is  not  the  taste  of  the  court,  or  of  the  tenant  for  life,  that  is  to 
control.  If  the  testator  or  author  of  the  interest  by  deed  had  gratified 
his  own  taste  by  planting  for  ornament,  though  he  had  adopted  tho 
species  the  most  disgusting  to  the  tenant  for  life,  and  the  most  agreeable 
to  the  tenant  in  tail,  and  upon  the  competition  between  the  parties  tho 
court  should  see  that  the  tenant  for  life  was  right,  and  the  other  wrong, 
in  point  of  taste,  yet  the  taste  of  the  testator,  like  his  will,  binds  them, 
and  it  is  not  competent  to  them  to  substitute  another  species  of  ornament 
for  that  which  the  testator  designed.2 

It  is  not  enough,  therefore,  in  an  application  for  an  injunction,  in  cases 
of  that  kind,  to  allege  that  the  trees  cut  down  were  ornamental.  It  must 
be  shown  that  they  were  planted,  or  left  standing,  for  the  purpose  of 
ornament.3 

The  principle  has  been  extended  from  ornament  of  the  house,  to  out- 
houses and  grounds,  then  to  plantations,  vistas,  avenues,  and  all  the  rides 
about  the  estate  for  ten  miles  round ;  and  in  the  case  of  the  Marquis  of 
Downshire  v.  Sandys,  (supra,)  it  was-  held  to  extend  to  clumps  of  firs  on 
a  common,  two  miles  distant  from  the  house,  they  having  been  planted 
for  ornament.4 

The  principle  has  been  extended  to  granting  an  injunction  against 
cutting  trees  which  were  planted  to  exclude  objects  from  view.5 

The  species  of  waste  we  are  considering  is  denominated  equitable 
waste.  It  is  so  called  because  it  is  restrained  only  by  courts  of  equity, 
and  is  not  punishable  in  courts  of  law. 

The  clause  in  leases,  which  give  rise  to  these  decisions,  is  not  usually 
inserted  in  leases  in  this  state. 

-  Though  a  tenant  for  life  may  open  the  earth  in  new  places,  in  pursuit 
of  an  old  vein  of  coals,  where  the  coal  mines  had  been  opened  before  he 
came  to  the  estate,6  yet  he  has  no  power  to  open  new  mines,  such  as  had 
not  before  been  opened.7  The  same  rule  was  applied  by  the  courts  of 
UTew-York  to  mines  of  iron  ore.8 

1  Vane  v.  Lord  Bernard,  2  Yern.  733.  5  Day  v.  Merry,  16  Ves.  375.  Williams 

Parkington's  case,  3  Atk.  215.  v.  M'Namara,  8  id.  70.    Newdegate  v. 

a  Marquis  of  Downshire  v.  Lady  San-  Newdegate,  1  Sim.  131. 

dys,  6  Ves.  110.                                         '  6  Clavering  v.  Clavering,  2  P. Wins. 389, 

3  Coffin  v.  Coffin,  Jacob,  70.  7  Whitfied  v.  Bewit,  2  P.  Wins.  240. 

•  i.d.  Tarn  worth  v.  Ld.  Ferris,6Ves.  419.  8  Coates  v.  Cheever.  1  Cowen,  477 


Ch.  6.]  Waste  and  Mines.  3T3 

In  Saunders'  case1  many  points  were  decided  on  this  subject.  Thus 
it  was  held,  that  if  a  man  hath  land,  in  part  of  which  there  is  a  coal  mine 
open,  and  he  leases  the  land  to  one  for  life,  or  for  years,  the  lessee  may 
dig  in  it ;  for  inasmuch  as  the  mine  is  open  at  the  time,  &c.  and  he  leases 
all  the  land,  it  shall  be  intended  that  his  interest  is  as  general  as  his 
lease  is ;  viz.  that  he  shall  take  the  profit  of  all  the  land,  and  by  conse- 
quence of  the  mine  in  it.  If,  however,  the  mine  were  not  open,  but  in- 
cluded within  the  bowels  of  the  earth  at  the  time  of  the  lease  made,  in 
such  case,  by  leasing  of  the  land,  the  lessee  cannot  make  new  mines,  for 
that  shall  be  waste. 

If  a  man  hath  mines  hid  within  his  land,  and  leases  his  land,  and  all 
mines  therein,  there  the  lessee  may  dig  for  them,  for  qaando  aliquis 
(/liquid  concedit,  concedere  videtur  et  id  sine  quo  res  ipsa  esse  non 
potest. 

Courts  of  equity  are,  in  general,  reluctant  in  granting  injunctions 
restraining  mining  operations,  from  the  great  expenditures  required  to 
renew  operations  after  they  have  been  suspended  ;  and  they  will  refuse 
to  interfere,  if  the  plaintiff  has  been  guilty  of  laches.2 

Any  material  change  in  the  nature  and  character  of  the  buildings, 
made  by  the  tenant,  is  waste,  although  the  value  of  the  property  should 
be  enhanced  by  the  alteration.3  In  one  case,  the  court  say  that  a  tenant 
cannot,  under  the  pretense  of  advantage  to  the  reversioner,  change  the 
nature  of  the  buildings;  and  many  cases  show  that  such  changes,  though 
beneficial,  would  be  waste.4  The  ground  on  which  alterations  in  the  de- 
mised premises,  not  prejudicial  to  the  value  of  the  property,  have  been 
declared  to  be  waste,  is,  that  they  change  the  identity  of  the  estate.  Ac- 
cordingly, the  conversion  of  arable  land  into  wood,  or  of  meadow  into 
arable,  provided  it  be  ancient  pasture,  is  waste  ;  and  injunctions  have 
been  granted  in  all  times  to  prevent  it.5  So,  converting  a  meadow  into 
an  orchard,  or  ploughing  up  a  hop  ground  and  sowing  it  with  grain,  is 
waste.  The  conversion  of  one  building  into  another,  as  the  changing  a 
logwood  mill  into  a  cotton  mill,  is  waste.6  So,  it  has  formerly  been  held, 
that  if  the  lessee  pulls  down  the  house  and  builds  a  new  one,  it  is  waste, 
if  the  new  one  is  either  larger  or  smaller  than  the  one  demised.7  So,  the 
making  material  alterations  in  a  dwelling  house  is  waste.8 

1  5  Coke,  22.  *  Jackson  v.  Andrews,  18  J.  It.  434. 

a  Grew  v.  The  Duke  of  Northumber-  5  Wilton  v.  Saxon,  G  Ves.  10G. 

land,   17  Ves.  284.     13  id.  230.     Birm-  6  Bridges  v.  Kilburn,  cited  5  id.  691. 

Ingham  Canal  Co.  v.  Lloyd,  18  id.  515.  7  22  Yin.  Ab.  430. 

'  Kidd  v.  Denuiaon,  G  Barb.  13,  per  8  Douglass  v.  "Wiggins,  1  J.  Ch.  It.  435. 
Paige,  J. 


374  Of  tsjutfcrtmn*.  [Ch.  tr 

But  the  doctrine  of  some  of  these  cases  is  not  applicable  to  the  state 
of  agriculture  in  this  country.  If  applied  literally,  they  would  put  a  stop 
to  all  improvements  in  husbandry,  and  prevent  the  growth  and  expansion 
of  the  country.  In  speaking  on  this  subject  Chancellor  Walworth  said: 
Some  of  the  ancient  cases  restricted  the  tenant  within  very  narrow  limits, 
as  to  his  right  to  alter  or  improve  the  premises  held  by  him,  without 
subjecting  him  to  an  action  of  waste,  or  to  a  forfeiture  of  the  estate. 
It  was  for  a  time  questionable  whether  a  tenant  or  a  copyholder  could 
erect  a  new  building  upon  the  premises,  without  subjecting  himself  to  a 
loss  of  the  property.  (See  Ward's  case,  4  Leon.  241.  Gray  v.  Ulysses, 
2  Dyer,  211,  note  b.  Paston  v.  Utberts,  Litt.  R.  264  ;  Hutton,  102,  S.  C. 
Cecil  v.  Cave,  D'Anver's  Abr.  194.  2  Rolle's  Abr.  815.  Coke  Litt. 
53,  a.  Keilway,  38.  Darcy  v.  Askwith,  Hobart's  R.  234.)  But  what- 
ever doubts  may  have  formerly  been  entertained  on  this  subject,  he  had 
no  hesitation  in  saying,  that  by  the  law  of  this  state,  as  now  understood, 
it  is  not  waste  for  the  tenant  to  erect  a  new  edifice  upon  the  demised 
premises  ;  provided  it  can  be  done  without  destroying  or  materially  in- 
juring the  buildings  or  other  improvements  already  existing  thereon. 
He  admitted  that  the  tenant  has  no  right  to  pull  down  valuable  buildings, 
or  to  make  improvements  or  alterations,  which  would  materially  and 
permanently  change  the  nature  of  the  property,  so  as  to  render  it  impos- 
sible for  him  to  restore  the  same  premises,  substantially,  at  the  expira- 
tion of  the  term.  But  to  apply  the  ancient  doctrines  of  waste  to  modern 
tenancies,  even  for  short  terms,  would,  he  thought,  in  some  of  the  cities  and 
villages,  put  an  entire  stop  to  the  progress  of  improvement,  and  deprive 
the  tenant  of  those  benefits  which  both  parties  contemplated,  at  the  time 
of  the  demise,  without  any  possible  advantage  to  the  owner  of  the  rever- 
sion. The  modern  cases  as  to  the  right  of  the  tenant  to  remove  fixtures, 
or  even  some  kinds  of  buildings,  erected  for  the  purposes  of  trade  or 
manufacture,  show  the  change  which  has  gradually,  if  not  imperceptibly, 
taken  place  in  the  law  upon  this  subject.  And  upon  the  principles  of 
these  modern  cases,  it  cannot  be  waste  to  make  new  erections  upon  the 
demised  premises,  which  may  be  removed  at  the  end  of  the  term  without 
much  inconvenience,  leaving  the  property  in  the  same  situation  it  was  at 
the  commencement  of  the  tenancy ;  and  the  materials  of  which  new 
buildings,  if  left  on  the  premises,  would  more  than  compensate  the  owmer 
of  the  reversion  for  the  expenses  of  their  removal.  On  these  principles, 
when  the  lessee  of  a  house  and  lot,  in  the  city  of  New- York,  for  eight 
years,  on  one  end  of  which  was  a  house  and  lot  containing  a  druggist 
store,  commenced  erecting  a  brick  building  on  the  rear  of  the  lot,  which 


Ch.  6.j  Fixtures.  37d 

was  vacant,  for  a  livery  stable,  the  chancellor  refused  the  application  of 
the  landlord  for  an  injunction.'* 

Waste  may  be  done  by  the  act  of  the  tenant  in  pulling  clown  houses,  or 
by  his  neglect  to  repair  them.  But  if  the  house  be  uncovered  when 
the  tenant  comes  in,  it  is  no  waste  in  the  tenaat  to  suffer  it  to  fall  down 
The  same  rule  applies  to  glass  windows,  wainscots,  doors,  furnaces,  and 
the  like  ;  these  being  parcel  of  the  house,  it  is  waste  if  they  are  suffered 
to  be  broken,  &c.2 

As  the  material  alteration  of  the  premises  demised,  from  their  natural 
condition,  is,  under  many  circumstances,  waste,  so  also  is  the  removal  of 
things  annexed  to  the  freehold  by  the  tenant. 

The  term  fixtures  is  always  applied  to  articles  of  a  personal  nature 
which  have  been  affixed  to  land.  It  is  sometimes  used  to  denote  the 
mere  fact  of  annexation,  and  that  the  things  so  annexed  cannot  be  re- 
moved ;  and  at  other  times,  to  designate  those  personal  chattels  which 
have  been  annexed  to  the  land  by  the  tenant,  and  which  he,  or  his  repre- 
sentatives, may  sever  and  remove  without  the  consent  of  the  own«jr  of 
the  freehold. 

It  is  not  enough,  to  constitute  a  fixture,  that  the  article  should  be  merely 
laid  upon  the  land.  Something  more  than  mere  juxta-position  is  required ; 
as  that  the  chattel  has  been  let  into  the  soil,  or  fastened  to  some  fabric 
previously  attached  to  the  ground,  in  such  way  that  it  cannot  be  detached 
without  some  injury  thereto. 

It  is  a  very  ancient  maxim,  that  whatever  is  fixed  or  annexed  to  the 
realty  is  thereby  made  a  part  of  the  realty  to  which  it  adheres,  and  par- 
takes of  its  incidents  and  properties.  By  the  mere  act  of  annexation  a 
personal  chattel  immediately  becomes  parcel  of  the  freehold  itself.3 

Land  includes  not  only  the  ground  or  soil,  but  every  thing  attached 
to  it  above  or  below,  whether  by  the  course  of  nature,  as  trees,  herbage, 
mines  and  water,  or  by  the  hands  of  man,  as  houses.4  Many  articles. 
though  originally  goods  and  chattels,  yet  when  affixed  by  a  tenant  to  his 
freehold,  cease  to  be  goods  and  chattels,  by  becoming  part  of  the  free- 
hold;  and  though  it  is  in  his  power  to  reduce  them  to  a  state  of  goods 
and  chattels  again  by  severing  them  during  his  term,  yet.  until  they  are 
6evered,  they  are  a  part  of  the  freehold,  as  wainscots  screwed  to  the  wall, 

1  Winchip  v.  Pitts,  3  Taige,  259.  3  Ferard's  Law  of  Fixtures  ch.  1. 

1  Cuke  Litt.  53,  a.  *  Ililliard  on  Real  Property,  ch.  1,  §  8. 


376  Of  Injunctions.  [Oh.  6 

trees  in  a  nursery  ground,,  which  when  severed  are  chattels,  but  standing 
are  part  of  the  freehold ;  certain  grates,  and  the  like.1 

The  ancient  rule  was,  that  all  annexations  made  by  the  tenant  during 
the  term  became  part  of  the  freehold,  and  could  not  be  severed  without 
the  consent  of  the  landlord.2  But  the  strictness  of  the  ancient  rule  has 
been  greatly  relaxed  in  modern  times.3 

The  doctrine  of  the  court  of  kings  bench,  in  Elwes  v.  Maw,  has  been 
adopted  in  New-York.  Thus,  in  a  case  arising  before  the  late  revision 
of  the  statutes,  and  decided  in  1827,4  the  court,  adopting  the  language  of 
Lord  Ellenborough,  in  Elwes  v.  Maw,  say,  that  the  law  relative  to  fixtures 
arises  principally  between  three  classes  of  persons :  1st,  between  the 
heir  and  executor ;  2d,  between,  the  executors  of  tenant  for  life  and  the 
remainderman  and  reversioner;  and  3d,  between  landlord  and  tenant :  and 
observe,  that  in  the  first  case  the  rule  obtains  with  the  most  rigor  in 
favor  of  the  inheritance,  and  against  the  right  to  disannex  therefrom,  and 
to  consider,  as  a  personal  chattel,  any  thing  which  has  been  affixed  thereto. 
In  the  latter  cases,  the  reasons  for  relaxing  the  rule  are  obvious,  upon 
motives  of  public  policy.  The  tenant  is  thereby  encouraged  to  make 
improvements,  and  the  interest  of  trade  promoted,  while  the  landlord  or 
reversioner  has  no  cause  to  complain,  inasmuch  as  the  farm  is  restored 
to  him  in  the  same  state  as  when  he  parted  with  it.  A  different  rule 
would  effectually  check  all  improvements  by  the  tenant,  when  it  is  known 
that,  at  the  end  of  the  term,  they  are  to  be  surrendered  to  the  landlord, 
or  the  reversioner  of  tenant  for  life.  But  the  case  between  heir  and 
executor,  and  vendor  and  vendee,  is  widely  different.  The  ancestor  or 
vendor  has  the  absolute  control,  not  only  of  the  land,  but  of  the  improve- 
ments. The  heir  and  executor  are  both  representatives  of  the  ancestor ; 
the  vendor  has  an  election  to  sell  or  not  to  sell  the  inheritance.  The 
court  accordingly  decided  that,  as  between  the  vendor  and  vendee,  all  fix- 
tures pass  to  the  latter,  though  they  were  erected  for  the  purpose  of  trade 
or  manufactures. 

The  rule  between  the  executors  of  tenant  for  life,  and  the  remainder- 
man and  reversioner,  with  regard  to  the  right  to  fixtures,  is  more  favorable 
to  the  executors  than  in  the  case  of  heir  and  executor,  and  vendor  and 
rendee.  An  illustration  of  the  rule  will  be  found  in  an  early  case,  before 
Lord  Hardwicke,  in  which  it  was  held  that  a  fire  engine,  set  up  for  the 

1  Per  Gibbs,  Ch.  J.,  in  Lee  v.  Risdon,        s  Elwes  v.  Maw,  8  East,  38.     Walker 

7  Taunt.  8S.  v.  Sherman,  20  "Wend.  030. 

a  Coke  Litt,  53,  a.  Ilerlakenden's  case         *  Miller  v.  Plumb,  G  Cqwbd,  667. 
4  Cuke,  62, 


I.  h.  b'.J  Fixtures.  377 

.>  mefit  of  a  colliery  by  a  tenant  for  life,  should  be  considered  a  part  of 
his  personal  estate,  and  go  to  his  executors,  and  not  belong  to  the  owner 
of  the  inheritance.1 

The  rule  between  landlord  and  tenant  is  more  favorable  to  the  latter, 
with  respect  to  the  right  of  removal,  than  in  either  of  the  other  cases. 
A  case  in  our  own  courts,  decided  before  the  late  revision  of  the  statutes, 
will  afford  a  convenient  illustration.  A  cider  mill  and  press,  erected  by 
a  tenant  holding  from  year  to  year,  at  his  own  expense,  and  for  his  own 
use,  in  making  the  cider  on  the  farm,  were  held  not  to  be  fixtures,  but 
personal  property,  belonging  to  the  tenant,  who  might  remove  them  at  the 
expiration  of  his  tenantcy.'*  In  a  case  of  this  kind,  it  does  not  seem  to 
be  important,  whether  the  mill  be  let  into  the  ground  or  not.  Nor  will 
the  title  to  it  be  affected,  by  its  not  being  removed  during  the  continuance 
of  the  tenantcy  ;  though  the  tenant,  if  he  enters  and  removes  it  after  the 
termination  of  his  tenantcy,  may  be  a  trespasser  on  the  soil,  and  be  an- 
swerable for  breaking  the  close,  there  can  be  no  recovery  against  him  for 
the  value  of  the  mill.3 

In  the  Revised  Statutes,  an  attempt  was  made  to  put  the  title  of4an 
executor  or  administrator  to  things  annexed  to  the  freehold,  or  to  any 
building,  for  the  purpose  of  trade  or  manufacture,  and  not  fixed  into  the 
Avail  of  a  house,  so  as  to  be  essential  to  its  support,  upon  the  same  footing 
is  that  of  the  tenant,  as  between  him  and  his  landlord.4  It  declared  such 
annexations  assets  in  the  hands  of  the  personal  representatives,  to  be  ap- 
plied and  distributed  as  part  of  the  personal  estate  of  the  testator  or  in- 
testate, while  it  left  other  annexations  to  the  freehold,  to  descend  with  it 
to  the  heirs,  or  pass  to  the  devisees.5  But  this  provision  of  the  Revised 
Statutes  has  not  been  thought  sufficient  to  define  what  is  to  be  considered 
a  part  of  the  freehold  itself,  and  what  are  mere  fixtures  or  things  annex- 
ed to  the  freehold,  for  the  purposes  of  trade  or  manufactures.  And  it  was 
deemed  still  necessary  to  go  back  to  the  common  law,  and  to  the  decisions 
of  the  courts,  for  the  purpose  of  ascertaining  what  is  a  substantial  part 
of  the  freehold,  and  what  is  a  mere  fixture  or  thing  annexed  to  such 
freehold.  We  must  also  resort  to  the  same  sources  of  information  to  as- 
certain what  is  to  be  considered  a  part  of  a  building,  and  what  is  in  its 
nature  mere  personal  property,  and  only  annexed  to  such  building  tem- 
porarily, for  the  purpose  of  trade  or  manufacture.  And  the  chancellor 
accordingly  held,  notwithstanding  the  statute,  that  the  water  wheels. 


1  Lawton  v.  Lawton,  8  Atk.  13.  *  2  R.  S.  83,  sub.  4.    3  R.  S.  639,  re- 

*  Holmes  v.  Tremper,  20  J.  R.  29.  visers'  notes. 

'  Id.  5  -2  id.  82,  83,  §§6,  7,  8. 

Eq.  Jlu.  4S 


378  Of  Injunctions  [Ch.  6. 

mills  stones,  running  gcer  and  bolting  apparatus  of  a  grist  and  flouring 
mill,  and  other  fixtures  of  the  same  character,  are  constituent  parts  of 
the  mill,  and  descend  to  the  heirs  at  law  as  real  property  ;  and  do  not 
pass  to  the  executors  or  administrators  of  the  deceased  owner  of  the  mill 
as  a  part  of  his  personal  estate,  although  they  were  not  so  fixed  into  the 
wall  as  to  be  essential  for  its  support.1  It  would  seem  that  fixtures  of 
this  character,  which  are  essential  to  the  enjoyment  of  the  inheritance, 
are  as  much  a  part  of  the  freehold  as  the  building  and  water  power,  which 
with  them  constitute  the  mill.2 

It  is  obviously  not  the  purpose  of  this  treatise  to  discuss  the  law  of 
fixtures  at  large.5  It  is  not  waste  for  the  tenant  to  sever  from  the  free- 
hold such  annexations  as  the  law  does  not  consider  as  indissolubly  a  part 
of  the  inheritance,  and  he  therefore  cannot  be  restrained  by  injunction  for 
doing,  or  threatning  to  do,  what  the  law  allows  him  to  perform. 

Having  thus  considered,  in  a  general  way,  Avhat  constitutes  waste,  it 
will  be  convenient,  in  the  next  place,  to  consider  the  remedy,  and  between 
what  parties  a  court  of  equity  will  interpose.4 

All  the  ancient  remedies  for  the  prevention  of  waste  have,  in  modern 
times,  given  place  either  to  an  action  on  the  case,  or  to  a  bill  in  equity 
to  stay  icaste  either  threatened,  or  while  the  party  is  committing  it,  and 
for  an  account  of  such  waste  as  may  have  already  been  done.  The  latter 
remedy  is  the  one  which  falls  within  the  compass  of  this  treatise,  and  is 
open  to  many  persons  who  could  not  take  the  advantage  of  the  ancient 
legal  remedies.  It  is  not  defeated  by  the  existence  of  an  intermediate 
estate,  between  the  parties  to  the  action ;  and  will  be  sustained,  where 
the  rights  of  the  complaining  party  are  only  of  an  equitable  nature. 

The  action  of  waste  is  abolished  by  the  code,  but  the  wrongs  remedi- 
able by  that  action  are,  like  other  wrongs,  the  subject  of  action,  in 
which  there  may  be  judgment  for  damages,  forfeiture  of  the  estate  of 
the  offending  party,  and  eviction  from  the  premises.5  The  remedy  in 
equity  is  unaffected  by  the  code,  except  it  must  be  conducted  according 
to  the  forms  of  the  eode.  There  are  also  statutory  remedies  for  staying 
waste,  pending  an  action  by  an  order  of  the  same  court.6 

1  House  v.  House,  10  Paige,  158.  163,  common  law,  see  3  Bl.  Com.  227,  228. 

164.  Jefferson  v.  Bishop  of  Durham,  1  Bos.  & 

1  Id.  Pul.  120,  opinion  of  Eyre,  Ch.  J.     Eden 

3  See  Walker  v.  Sherman,  20  Wend.  G38  on  Inj.  ch.  9.  1  Fonb.  Eq.  B.  1,  ch.  1, 
to  657,    for  an   elaborate  review  of  all  §  5,  note. 

the  cases  on  this  subject,  by  Cowen,  judge.        s  Code,  §  451.     3  E.  S.  333. 

4  For  an  account   of  the  remedy   at        c  2  R.  S.  336,  §  18. 


Ch.  6.J  Waste.     Remedy.  379 

At  law  a  mortgagee  cannot  maintain  an  action  of  waste,  against  the 
mortgagor,  before  the  forfeiture  of  the  mortgage.  The  reason  is,  that 
waste  is  a  remedy  given  to  him  who  has  the  inheritance  in  expectancy 
in  remainder  or  reversion.  The  interest  of  the  mortgagee  is  contingent, 
and  may  he  defeated  by  payment  of  the  money  secured  by  the  mortgage 
But  in  equity  an  injunction  lies  against  a  mortgagor  in  possession,  tc 
?tay  waste.  The  court  will  not  suffer  him  to  prejudice  the  security.2 
For  every  substantial  purpose,  the  mortgagor  is,  in  this  state,  the  real 
owner  of  the  land,  and  the  mortgagee  has  merely  a  lien  upon  it.3 
Though  in  general  the  owner  of  the  legal  estate  can  deal  with  it  as  he 
pleases,  yet  if  there  be  equitable  circumstances,  incompatible  with  that 
right,  equity  will  restrain  him.4  Lord  Hardwicke  said,  in  one  case,5  that 
he  should  have  no  scruple  to  grant  an  injunction  to  stay  waste  in  favor 
of  a  child  in  ventre  sa  mere.  An  action  at  law  would  not  lie  in  such  a 
case ;  and  there  are  various  other  contingent  rights,  not  cognizable  at 
law,  which  equity  will  protect. 

At  common  law  the  assignee  of  the  tenant  by  the  curtesy  could  not 
be  used  in  waste.  The  action  must  be  brought  against  the  tenant  him- 
self by  the  heir ;  and  the  books  state,  that  thereby  he  shall  recover  the 
lands  against  the  assignee  for  the  privity  which  is  between  the  heir  and 
tenant  by  the  curtesy.  So  if  tenant  in  dower,  or  tenant  by  the  curtesy, 
grant  over  their  estate,  yet  the  privity  of  action  remains  between  the 
heir  and  them,  and  he  shall  have  an  action  of  waste  against  them  for 
waste  committed  after  the  assignment ;  but  if  the  heir  grants  over  the 
reversion,  there  the  privity  of  action  is  destroyed,  and  the  grantee  cannot 
have  any  action  of  waste  but  only  against  the  assignee  ;  for  between  them 
there  is  privity  in  estate  ;  and  between  them  and  the  tenant  in  dower,  or 
the  tenant  by  the  curtesy,  is  no  privity  at  all ;  so  that  at  law,  if  the  as- 
signee is  suable  in  waste,  there  must  be  a  privity  of  estate.6 

The  action  of  waste  could  not  be  maintained  against  a  tenant  for  life, 
except  by  him  who  had  the  immediate  estate  of  inheritance,  expectant  on 
the  determination  of  the  estate  for  life.  So  that  if,  between  the  estate 
of  the  tenant  for  life,  who  commits  waste,  and  the  subsequent  estate  of 
inheritance,  there  was  interposed  an  estate  of  freehold,  to  any  person  in 

1  Peterson  v.  Clark,  15  J.  R.  205.     3  '  Astor  v.  Milles,  2  Paige,   G8.     Astor 

Bl.  Com.  225.  v.  Iloyt,  5  Wend.  602. 

3  Brady  v.  Waklron,  2  J.  Ch.  E.  148.  *  Robinson  v.  listen,  3  Atk.  210. 

Robinson  v.  Litton,  3  El.  210.     Down-  5  Id. 

tag  v.  Palmatoer,  1  Monroe,  G5.     Spear  c  Eates   v.   Scbraeder,    13   J.   R.   263. 

v.  Culler.  5  Barb.  489.    Van  Wyck  v.  Coke's  Inst.  54,  a.    2  id.  301,  a.    Walk- 

Alliger,  6  id.  507.  er'scaso,  b  Coke.  23. 


380  Of  Injunctions.  [Ch.  6 

esse  during  the  continuance  of  such  interposed  estate,  the  action  of 
waste  was  suspended.1  Nor  could  any  person  at  common  law,  unless  he 
was  in  the  actual  possession  of  the  land,  maintain  trespass  for  an  injury  to 
the  inheritance.2  The  act  for  the  amendment  of  the  law  provided  for 
both  these  cases,3  and  which  is  preserved  by  the  Revised  Statutes.4  It 
is  there  enacted  that  a  person  seised  of  an  estate  in  remainder,  or  rever- 
sion, may  maintain  an  action  of  waste  or  trespass  for  any  injury  done  to 
the  inheritance,  notwithstanding  any  intervening  estate  for  life  or  years. 
This  provision  merely  relieved  the  plaintiff  from  the  technical  objections 
above  mentioned.  It  gives  to  the  remainderman  or  reversioner  an  action 
of  waste,  when  waste  is  the  appropriate  remedy,  and  trespass,  when  tres- 
pass is  the  appropriate  remedy,  notwithstanding  any  intervening  estato 
for  life  or  years.5  It  does  not  give  the  action  of  waste  against  a  stranger 
nor  alter  the  law  as  to  the  requisite  privity  of  estate  between  the  heir 
and  the  tenant  by  the  curtesy  or  tenant  in  dower,  so  that  the  principle 
continues  the  same  as  to  his  assignee,  who,  without  such  privity,  is  not 
liable  at  law  to  an  action  of  waste.6 

An  injunction  to  stay  waste  between  tenants  in  common  will  be  sus- 
tained in  special  cases  ;  as  where  the  defendant  is  insolvent,  or  where  the 
waste  is  destructive  of  the  estate,  and  not  within  the  usual  and  legitimate 
exercise  of  enjoyment ;  or  where  one  tenant  in  common  occupies  as  ten- 
ant under  another.7  The  statute  of  W.  2, 13  Ewd.  1,  ch.  22,  and  which  has 
been  adopted  in  this  state,8  gives  an  action  of  waste  by  one  tenant  in 
common  or  joint  tenant  against  another.  The  injury  is,  therefore,  one 
recognized  by  law  ;  and  the  remedial  power  of  equity  may  be  called  in, 
whenever  the  legal  remedy  is  inadequate  or  defective. 

In  all  cases  after  the  commencement  of  an  action  for  the  recovery  of 
land,  or  for  the  recovery  of  the  possession  of  land,  if  the  defendant  shall 
commit  waste,  the  court  in  which  the  suit  is  pending  is  empowered,  on 
the  application  of  the  plaintiff,  to  make  an  order  restraining  the  defendant 
from  the  commission  of  any  further  waste  thereon,  and  to  enforce  the  or- 
der as  courts  of  equity  enforce  an  injunction.9 

1  Livingston  v.  Haywood,  11  J.  R.  430,  6  Id. 

431.  7  Ilawley  v.  Clowes,  2  J.  Ch.  R.  122. 

3  Id.  Hole  v.  Thomas,  7  Ves.  588. 

3  1  R.  L.  527.  §  33.  8  2  R.  S.  334,  §  3. 

4  1  R.  S.  750,  §  8.  9  Id.  336,  §§  18,   10.     And  see  former 
6  Bates  v.   Schraeder,   13   J.   R.   2(53,  act,  1  R.  L.  88,  §  39.     6  Edw.  1,  ch.  13. 

Uvingston  v.  Haywood,  11  id.  431. 


Ch.  6.J  To  Restrain  Trespasses.  331 

A  summary  jurisdiction  is  also  vested  by  law,  in  justices  of  the  supreme 
court  and  county  judges,  or  any  one  of  them,  to  restrain  by  an  order  the 
commission  of  waste,  committed  or  threatened,  by  the  person  whose  real 
property  has  been  sold  on  execution,  or  by  any  person  in  possession  of 
the  premises  so  sold,  between  the  sale  and  time  of  redemption,  and  tc 
punish  the  violation  of  such  order  in  the  same  manner  as  courts  of  equity 
punish  the  violation  of  an  injunction.1 

The  jurisdiction  of  courts  of  equity  to  restrain  waste  is  a  wholesome 
one,  to  be  liberally  exercised  in  the  prevention  of  irreparable  injury,  and 
depends  on  much  latitude  of  discretion  in  the  court.  Equity  goes  to 
greater  length  in  staying  waste  than  courts  of  law.  There  are  numerous 
cases  in  chancery,  in  which  the  court  has  interposed  to  stay  waste  by  the 
tenant,  where  no  action  could  be  maintained  against  him  at  law.  Thus, 
where  there  is  lessee  for  life,  remainder  for  life,  remainder  in  fee ;  the 
mesne  remainderman  cannot  bring  waste,  nor  the  remainderman  ill  fee, 
but  equity  will  interpose  and  stay  waste.2  So  equity  will  in  many  cases 
restrain  waste,  though  the  lease  contain  the  clause,  without  impeach- 
ment oficaste,  and  which  takes  away  the  remedy  at  law,  as  where  £his 
power  is  exercised  in  an  unreasonable  manner  and  against  conscience.3 
Nor  is  it  essential  to  the  remedy  that  there  should  be  an  actual  lis  ]>cn~ 
dens  in  a  court  of  law.4 

The  remedies  against  the  person  are  less  efficient  than  they  were 
formerly ;  while  the  progress  of  society,  the  increase  of  wealth,  and  the 
competition  to  which  it  gives  rise,  call  for  and  receive  the  more  ener- 
getic protection  of  the  law.  The  courts  of  equity  have  accordingly  yielded 
to  the  pressure  of  public  necessity,  and,  as  was  remarked  by  Vice  Chan- 
cellor Bruce,  on  a  recent  occasion,  do  not  treat  questions  of  destructive 
damage  to  property  now,  exactly  as  they  did  forty  years  back — that  their 
protection  in  such  respects  is  more  largely  afforded  than  it  then  generally 
was.  And  in  adverting  to  cases  where  relief  by  injunction  had  formerly 
been  denied,  he  ventures  to  say  that  relief  would  be  given,  at  the  present 
day.  in  cases  of  an  analogous  character.5 

Cases  of  trespass  upon  land,  attended  with  irreparable  injury,  are  anal- 
ogous to  waste,  and  in  modern  times,  and  with  certain  limitations,  injunc- 

1  2  R.  S.  887,  §  23  et  seq.  •  Id.     Aston   v.  Aston,   1   Ves.   264. 

5  Kane  v.  Vanderburgh,  1  J.  Ch.  R.  12.  Strathmore  v.  Bowes,  2  Bre.  83. 

j'err.a  v.  Perrot,  3  Atk.  94.  Robinson  v.  *  Kane  v.  Vanderburgh,  1  J.  Ch.  R.  11 

Litt#n,  'd.  210.  Farraut  v.  Lovel,  id.  723.  '  Haigh  v.  Jaggar,  2  Collver,  230. 


Bb'2,  Of  Injunctions.  [Ch.  fi 

dons  have  been  granted.  Lord  Eldon  said,  on  one  occasion,1  that  thert 
tVas  no  instance  of  an  injunction  in  trespass  till  the  case  before  Lord 
Thurlow,  in  Fleming's  case,  cited  and  followed  by  himself,2  where  the 
defendant  had  worked  from  his  own  land  into  the  coal  mine  of  the 
plaintiff.  It  went  upon  the  principle  that  irremediable  mischief  and  ruin 
of  the  property,  as  a  mine,  would  be  the  consequences,  if  the  party  was 
not  stopped.  On  the  same  ground,  the  injunction  is  granted  against  di- 
verting a  water  course  from  a  mill,  (1  Bro.  588  ;)  against  the  destruction 
of  timber,  (10  Ves.  290  ;)  against  the  taking  of  stones  of  peculiar  value.3 
or  stones  from  a  quarry.4  But  all  these  are  cases  of  great  and  irremedi 
able  mischief,  which  damages  could  not  compensate,  because  the  mischief 
reaches  to  the  very  substance  and  value  of  the  estate,  and  goes  to  the 
destruction  of  it  in  the  character  in  which  it  is  enjoyed.  This  doctrine 
was  approved  by  Chancellor  Kent,  who  refused  an  injunction  to  restrain 
a  trespass,  where  the  injury  was  not  irreparable  and  destructive  to  the 
plaintiffs  estate,  but  was  susceptible  of  perfect  pecuniary  compensation, 
and  for  which  the  party  might  obtain  adequate  satisfaction  in  the  ordi- 
nary course  of  law.5  * 

In  Fleming's  case,  (supra,)  which  Lord  Eldon  says  was  the  first  instance 
of  granting  an  injunction  in  trespass,  the  nature  of  the  injury  was  very 
near  waste,  and  there  was  no  dispute  whatever  about  the  right.6  The  an- 
cient doctrine  of  the  court  no  doubt  was,  not  to  interfere  by  injunction 
in  cases  of  trespass,  but  to  leave  the  party  to  his  legal  remedy.  But  the 
practice  of  the  Courtis  now  more  liberal;  yet,  in  cases  of  trespass,  it  ex- 
pects a  strong  case  of  destruction  or  irreparable  mischief  to  be  present- 
ed.7 While,  for  a  mere  naked  trespass,  when  the  remedy  at  law  is  full 
and  adequate,  equity  will  not  interpose ;  yet,  for  the  purpose  of  quieting  a 
possession,  or  preventing  a  multiplicity  of  actions,  or  where  the  value 
of  the  inheritance  is  in  jeopardy,  or  irreparable  mischief  is  threatened, 
in  relation  either  to  mines,  quarries,  or  woodland,  the  court  will  interfere 
by  injunction,  even  against  a  person  acting  under  a  claim  of  right.3 
The  injury  may  be  irreparable,  either  from  the  nature  of  the  injury  it- 
self, or  from  the  want  of  responsibility  in  the  person  committing  it.9 

When  the  right  of  a  party  is  doubtful,  the  court  will  not  grant  an  in- 
junction, to  prevent  an  illegal  interference  with  the  same,  until  the  right 

1  Smith  v.  Collyer,  8  Ves.  90.  6  Smith  v.  Collyer,  8  Yes.  90. 

-  Mitchell  v.  Dors,  G  id.  147.    Hanson        7  West  v.  Walker,  2  Green's  Ch.  R.  279. 

9.  Gardiner,  7  id.  308.  Yan  Winkle  v.  Curtis,  id.  422. 
•  Earl   Cowper  v.  Baker,  17  id.   128.        8  Kerliu  v.  West,  3  Green's  Ch.  K.  44t 
4  Thomas  v.  Oakly,  IS  id.  184. 
6  Jerome  v.  Pwoss,  7  J.  Ch.  It.  315. 


Ch.  G.J  Patents.     Copyrights.  383 

is  established  at  law.1  To  warrant  an  injunction,  to  prevent  a  mere  tres- 
pass, the  party  invoking  the  aid  of  the  court  must  have  been  in  the  pre- 
vious undisturbed  enjoyment  of  the  property,  under  claim  of  right,  or 
relief  at  law  must  be  unattainable,  from  the  irresponsibility  of  the  de- 
fendant or  otherwise.2 

It  requires  a  strong  case  to  restrain  a  trespass  by  a  party  in  possession, 
claiming  by  an  adverse  title.  Unless  a  complaint  shows  some  other  grounC 
of  equitable  relief,  such  as  the  insolvency  of  the  defendant,  the  peculiar 
nature  of  the  injury,  and  the  like,  accompanied  with  proof  of  the  plain- 
tiff's title,  equity  will  not  interfere  till  the  right  has  been  established  at 
law.  If  it  admits  the  defendant's  possession  under  claim  of  right,  and 
does  not  countervail  it  by  some  other  statement,  the  complaint  is  defective.3 


SECTION  VI.  < 

09  INJUNCTIONS  TO  RESTRAIN  THE  INFRINGEMENT  OF  PATENTS,  THE  VIOLATION 
OF  COPYRIGHTS,  AND  THE  UNAUTHORIZED  PUBLICATION  OF  LETTERS,  AND 
THE  LIKE. 

Another  ground  of  injunction  is  to  restrain  the  infringement  of  pat- 
evits  anl  of  copyrights.     By  the    constitution  of  the  United  States,  con- 
Is  empowered  to  promote  the  progress  of  science  and  useful  arts,  by 
ng,  for  limited  times,  to  authors  and  inventors,  the  exclusive  right 
to  their  respective  writings  and  discoveries.4     And  by  a  subsequent  ar- 
ticle, (art.  3,  §  2.)  the  judicial  power  of  the  general  government  is,  amongst 
oilier  things,  made  to  extend  to  all  cases  in  law  and  equity,  arising  under 
Qstitution  and  the  laws  of  the  United  States.     Congress  has  exer- 
cise I  its  power,  both  with  respect  to  authors  and  inventors,  by  securing 
to  them,  for  limited  periods,  the  product  of  their  genius  and  labors.     And 
by  the  act  of  the  fifteenth  of  February,  1819,  entitled  an  act  to  extend 
the  jurisdiction  of  the  circuit  courts  of  the  United  States  to  cases  arising 
under  the  law  relating  to  patents,  original  cognizance,  as  well  in  law  as 

1  Hart  v.  Mayor  of  Albany,  3  Paige,  2  LTart  v.  Mayor  of  Albany,  3  Paige, 

818.     Nevitt  v.  Gillespie,  1  How.  (Miss.)  214    Storm  v.  Mann,  4  J.  Oh.  It.  21. 

108.    Partridge  v.  Menck,  2  Barb.  Ch.  3  Pillsworth  v.  Hopton,   6    Ves.    51. 

R.  101.     Van   Bergen  v.  Van  Bergen,  3  Davenport  v.  Davenport,  7  Hare,  222. 

■••  <  b    R.  -J-.'.    Danav.  Valentino,  5  Met-  Storm  v.  Mann,  -I  J.  Oh.  R.  22. 

oatfj  8  *  Const,  t".  S.  art.  1,  §  8,  sabd.  8. 


884  Of  Injunctions.  [Ch.  6. 

in  equity,  is  given  to  the  circuit  courts  of  the  United  States,  of  all  ac- 
tions, suits,  controversies  and  cases  arising  under  any  law  of  the  United 
States,  granting  or  confirming  to  authors  or  inventors  the  exclusive  right 
to  their  respective  writings,  inventions  and  discoveries  ;  and  authority  is 
conferred  on  said  courts,  upon  any  bill  in  equity,  filed  by  any  party  aggrieved 
in  any  such  cases,  to  grant  injunctions,  according  to  the  course  and  princi- 
ples of  courts  of  equity,  to  prevent  the  violation  of  the  rights  of  any  authors 
or  inventors,  secured  to  them  by  any  laws  of  the  United  States,  on  such 
terms  and  conditions  as  the  said  courts  may  deem  reasonable,  subject  to  ap- 
peal to  the  supreme  court  of  the  United  States.1  And  by  the  act  of  July  4. 
1836,  entitled  an  act  to  promote  the  progress  of  useful  arts,  and  to  repeal 
all  acts  and  parts  of  acts  heretofore  made  for  that  purpose,  it  is  enacted, 
that  all  actions,  suits,  controversies  and  cases  arising  under  any  law  of 
the  United  States,  granting  or  confirming  to  inventors  the  exclusive  right 
to  their  inventions  or  discoveries,  shall  be  originally  cognizable,  as  well 
in  equity  as  at  law,  by  the  circuit  courts  of  the  United  States,  or  any  dis- 
trict court  of  the  United  States  having  the  powers  and  jurisdiction  of  a 
circuit  court.  And  it  then  confers,  in  express  terms,  upon  those  courts, 
the  power  of  granting  injunctions,  according  to  the  course  and  principles 
of  courts  of  equity,  to  prevent  the  violation  of  the  rights  of  any  in 
ventor,  secured  to  him  by  any  laws  of  the  United  States,  on  such  terms 
and  conditions  as  said  courts  may  deem  reasonable,  with  a  right  of  ap 
peal  to  the  supreme  court  of  the  United  States.2 

Under  the  foregoing  constitutional  and  legislative  provisions,  it  has 
been  held,  by  the  court  of  appeals  of  the  state  of  New- York,  that  the 
jurisdiction  in  the  case  of  infringements  of  patents  is  exclusively  in  the 
courts  of  the  United  States,  and  that  the  courts  of  this  state  have  no 
jurisdiction  to  entertain  a  suit  instituted  to  restrain  the  infringement  of 
a  patent  right.3  Under  previous  acts  of  congress,  the  supreme  court  of 
this  state  disclaimed  jurisdiction  in  actions  brought  to  recover  damages  for 
the  infringement  of  patents.4  Chancellor  Walworth  held,  in  1830,  that 
the  act  of  15th  February,  1819,  extending  jurisdiction  of  the  circuit 
courts  of  the  United  States  to  suits  both  at  law  and  in  equity,  arising 
under  the  patent  laws,  did  not,  in  terms,  or  by  implication,  render  that 
jurisdiction  exclusive.5  But  he  admitted,  in  a  subsequent  case,  that  the 
jurisdiction  is  exclusive,  under  the  revised  act  of  1836.6 

The  reasoning  of  the  learned  judge,  in  the  case  of  Dudley  v.  .May hew, 

1  Laws  of  U.  S.  6th  vol.  369.  *  Parsons  v.  Barnard,  7  J.  R.  144. 

8  Laws  of  1836,  p.  242,  §  17.  6  Burrall  v.  Jewett,  2  Paige,  134,  143 

'  Dudley  v.  Mayhew,  3  Corast.  9.  6  Gibson  v.  Woodworth,  8  id.  132. 


Ch.  C]  To  Restrain  Publication  of  Letters.  385 

(supra,)  in  the  New-York  court  of  appeals,  tends  to  shuw  that  the  juris 
diction,  with  respect  to  literary  works  and  mechanical  inventions,  stands 
upon  the  same  ground.  Neither  the  'author  or  inventor  has  any  right 
which  can  be  protected  otherwise  than  through  the  instrumentality  of 
the  acts  of  congress.  And  when  a  statute  confers  aright,  and  prescribes 
adequate  means  for  protecting  it,  the  proprietor  is  confined  to  the  statu- 
tory remedy.  In  the  case  of  authors  and  inventors,  the  remedies  given 
by  the  statute  are  fully  adequate  for  the  protection  of  the  right-  created. 
and  the  courts  designated,  competent  to  declare  and  enforce  them.  It  is 
believed  that  the  jurisdiction  to  restrain  by  injunction  the  infringement 
of  a  patent,  or  the  invasion  of  a  copyright,  is  exclusive  in  the  courts  of 
the  United  States,  and  cannot  be  exercised  concurrently  by  the  state 
courts. 

It  is  foreign  to  the  design  of  this  work  to  go  into  the  discussion  of 
questions  relative  to  patents  and  copyrights.  The  whole  subject  is  ex- 
hausted in  Eden  on  Injunctions,  to  which  Mr.  Waterman  has  appended 
the  American  cases.  Whoever  wishes  to  learn  how  those  rights  are  pro- 
tected and  enforced,  and  to  observe  the  subtle  principles  on  which  many 
of  the  cases  turned,  will  find  the  whole  subject  admirably  discussed  in 
the  author  to  which  reference  is  made.1 

Of  a  nature  similar  to  the  violation  of  a  copyright  is  the  publication, 
without  the  consent  of  the  author  or  legal  owner,  of  any  manuscript  what- 
ever, whether  it  be  a  manuscript  treatise,  or  letters  written  by  or  to  him, 
either  of  business  or  friendship,  or  on  any  other  occasion.  The  ground 
for  an  injunction,  in  these  cases,  rests  on  the  'property  which  the  com- 
plaining party  has  in  the  manuscripts  or  letters,  or  on  the  trust  mid  con- 
fidence reposed  in  the  other  party,  and  which  will  be  violated  by  the  un- 
authorized publication. 

The  act  of  congress,  to  amend  the  several  acts  respecting  copyrights, 
passed  February  3,  1831,2  enacts  that  any  person  or  persons,  who  shall 
print  or  publish  any  manuscript  whatever,  without  the  consent  of  the 
author  or  legal  proprietor  first  obtained,  (if  such  author  or  proprietor  be 
a  citizen  of  the  United  States,  or  resident  therein.)  shall  be  liable  to  suffer, 
and  pay  to  the  author  or  proprietor  all  damages  occasioned  by  such 


1  2  Eden  on  Injunctions  by  Waterman,  1  id.  11.     Bramwell  v.  Holcomb,  3  Myl. 

277  to  3:37,  ch.  12,  13.     Curtis  on  Copy-  &  Craig,  737,  738.     Saunders  v.  Smith, 

right.     Campbell  v.  Scott,  11  Sim.  81.  3  id.  711 

Emerson  v.  Davis, 8 Store's R. 768.    Fob  "Laws of  1881,  p.  11, ch.  1J5  §9. 

soin  v.  Marsh,  2  id.  100.     Gray  v.  Russell, 

Eq.  Jur.  49 


886  Of  Injunctions.  fCL  6. 

injury,  to  be  recovered  by  a  special  action  on  the  case,  founded  upon  that 
ict,  in  any  court  having  cognizance  thereof;  and  it  empowers  the  severa. 
courts  of  the  United  States,  having  authority  to  grant  injunctions  to  pre- 
vent the  violation  of  the  rights  of  authors  and  inventors,  to  grant  injunc- 
tions in  like  manner,  according  to  the  principles  of  equity,  to  restrain 
such  publication  of  any  manuscript  as  aforesaid.  Here,  no  exclusive 
jurisdiction  is  given  to  the  courts  of  the  United  States,  and  it  is  quite 
apparent  that  the  state  courts  have  the  same  jurisdiction,  in  this  respect; 
as  existed  at  common  law. 

If  the  letters  or  manuscripts  be  of  a  literary  character,  the  jurisdic- 
tion of  a  court  of  equity  to  restrain  their  publication,  by  injunction,  does 
not  seem  to  have  been  doubted.  Lord  Hardwicke,  in  an  early  easo,  grant- 
ed an  injunction  restraining  the  defendant  from  publishing  the  letters  of 
the  plaintiff,  Pope,  but  not  those  which  were  written  to  him.  He  con- 
sidered that  the  writing  a  letter  to  a  man,  and  sending  it  to  him,  does 
not  give  to  the  receiver  a  right  to  publish  it.  The  latter  may  possibly 
own  the  paper  on  which  it  is  written,  and  have  a  special  property  in  the 
letter  itself.  But  he  thought  the  right  to  obtain  a  copyright  for  the 
letter  remained  in  the  writer,  notwithstanding  its  transmission  to  tho 
party  addressed,  and  that  neither  the  latter,  or  any  other  person,  had  a 
right  to  publish  it  without  the  consent  of  the  writer.1  This  case  wag 
followed  by  Lord  Bathurst,  in  1773,  and  an  injunction  was  granted  on  a 
bill  filed  by  the  executors  of  Lord  Chesterfield,  to  restrain  the  publica- 
tion of  letters  written  by  his  lordship  in  his  lifetime,  to  his  son  in  the 
lifetime  of  the  latter,  and  the  injunction  was  granted  against  the  widow 
and  personal  representative  of  the  son  and  the  publisher.2  In  a  mod- 
ern case,  the  vice  chancellor  held,  that  an  injunction,  restraining  the  pub 
lication  of  private  letters,  having  the  character  of  literary  compositions, 
whether  of  a  private  nature,  or  upon  general  subjects,  stood  upon  the 
same  foundation  as  the  protection  of  literary  property.3  He  thought  that 
mercantile  or  other  correspondence  stood  upon  a  different  footing,  and 
whether  the  publication  should  be  restrained  or  not,  depended  upon  cir- 
cumstances. And  that  if  the  publication  became  necessary  for  the 
vindication  of  the  party  receiving  the  letters,  against  any  unjust  asper- 
gion  cast  upon  him  by  the  writer  of  the  letters,  the  publication  of  them 
would  not  be  enjoined  by  a  court  of  equity.4 

The  decision  of  the  vice  chancellor  of  the  first  district,  in  an  important 

1  Pope  v.  Curl,  2  Atk.  342.  s  Percival  v.  Phipps,  2  Yea.  &  B.  23. 

'  Ambler,  737.  4  Id.  27. 


Oh.  6.)  To  Restrain  Publication  op  Letters.  387 

case  before  him,  disclaimed  for  the  court  of  chancery  all  jurisdiction  to 
restrain  the  publication  of  private  letters,  whether  written  in  the  confi- 
dence of  friendship  or  otherwise,  except  upon  the  ground  of  literary 
properly.1  Accordingly,  though  the  publication  might  wound  the  feel- 
ings of  the  writer,  and  be  a  breach  of  confidence  reposed  in  the  party  to 
whom  they  were  addressed,  yet  if  the  letters  contained  no  attribute  of 
literary  composition,  an  injunction  should  be  refused.  And  there  is  a 
dictum  of  the  chancellor,  in  another  case,2  that  the  utmost  extent  to 
which  the  court  of  chancery  has  ever  gone  in  restraining  any  publication 
by  injunction  has  been  upon  the  principle  of  protecting  the  rights  of 
property.  And  he  doubts  whether  Lord  Eldon,  in  Gee  v.  Pritchard,3  in 
assuming  to  restrain  a  publication  of  letters  as  a  matter  of  property 
merely  when  in  fact  the  object  of  the  complainant's  bill  was  not  to  pre- 
vent the  publication  of  her  letters  on  account  of  any  supposed  interest 
she  had  in  them  as  literary  property,  but  to  restrain  the  publication  of  a 
private  correspondence,  as  a  matter  of  feeling  only,  did  not  intrench  up- 
on the  liberty  of  the  press.  The  chancellor,'  in  a  still  more  recent  case, 
reviewed  the  whole  subject,  and  concluded  by  saying  that  the  coutt  of 
chancery  cannot  properly  exercise  a  power  to  restrain  the  publication  of 
private  letters,  on  the  ground  of  protecting  literary  property,  where  they 
possessed  no  attributes  of  literary  composition,4  In  Hoyt  v.  Mackenzie, 
the  bill  charged  no  breach  of  confidence  in  any  person,  but  rested  the 
case  upon  the  violation  of  the  right  of  property  of  the  complainant  in 
the  letters.  In  Brandreth  v.  Lance,  the  object  of  the  bill  was  to  prevent 
the  publication  of  a  libel  upon  the  plaintiff  or  his  business,  which  the 
chancellor  refused  to  sustain.  The  ground  of  the  reluctance  of  the  court, 
to  entertain  bills  for  an  injunction  in  these  cases,  is  the  apprehension 
that  it  will  lead  to  an  infringement  of  the  liberty  of  the  press.5 

If  the  question  turns  upon  the  right  of  property  which  the  writer  has 
in  a  letter  which  he  has  addressed  and  sent  to  another  person,  it  is  diffi- 
cult to  see  the  principle  on  which  the  court  can,  as  matter  of  law,  say 
that  the  writer  has  a  property  in  one  class  of  letters,  because  they  are 
literary  compositions,  and  none  in  another  class,  because  they  have  no 
literary  merit.  How  can  the  court  decide  the  literary  excellence  of  the 
letters  ?  How  can  it  know  that  the  one  is  worthy  of  publication  by  the 
writer,  and  that  its  publication  by  the  person  addressed  should  therefore 


1  Wetmore  v.  Scovell,  3  Edw.  CL.  71.  '  Hoyt  v.  Mackenzie  3  Barb.  Ch.  R. 

515.  323. 

'  Brandreth  v.  Lance,  8  Paige,  27.  6  Brandreth  v.  Lance,  8  Paige.  28. 
3  2  Bwanst  Rep.  403. 


38S  Of  Injunctions.  [Ch.  6. 

be  restrained,  while  another  is  destitute  of  merit,  and  therefore  the  court 
should  not  interfere  ?  Would  not  the  right  to  decide  these  questions,  if 
conceded,  leave  one  class  of  letters  without  protection,  and  that  class  the 
one  which  most  impressively  called  for  it  1  On  principle,  it  would  seem, 
that  if  the  writer  has  a  property  in  a  letter  written  like  a  scholar,  he  has 
a  property  in  a  letter  written  like  a  tyro.  It  is  not  the  business  of  the 
court  to  inquire  which  letter  will  command  the  highest  price  among  pub- 
lishers. It  is  enough  that  it  is  the  property  of  the  writer,  and  he  alone 
must  decide  whether  it  shall  be  published  or  not.  The  writer  of  a  poor 
letter  is  as  much  entitled  to  have  his  property  protected,  as  the  writer  of 
a  good  one.  Indeed,  in  the  former  case,  the  unauthorized  publication 
may  be  more  distressing  and  injurious  to  the  writer  than  in  the  latter.' 
But  though  the  right  of  property  is  enough  to  lay  the  foundation  far 
an  injunction  to  restrain  the  unauthorized  publication  of  another's  mani- 
scripts  or  letters,  still  it  is  believed  that,  where  the  publication  involves  a 
breach  of  trust  and  confidence,  a  court  of  equity  may,  on  that  grounl 
alone,  interfere.2  An  injunction  was  granted  to  restrain  the  publication 
of  letters  from  an  old  lady,  under  a  weak  attachment  to  a  young  man, 
there  having  been  an  agreement  not  to  publish  the  letters,  but  to  deliver 
them  up  for  a  valuable  consideration,  and  a  sum  of  money  having  been 
actually  paid  to  the  defendant.3 


SECTION  VII. 

OF   INJUNCTIONS  TO   SUPPRESS    THE    CONTINUANCE  OF    PUBLIC    OR    PRIVATE  NUI- 
SANCES, PURPRESTURES,  AND  THE  LIKE. 

Another  ground  for  an  injunction,  is  to  restrain  the  continuance  of 
public  or  private  nuisances,  purprestures,  and  the  like.  The  term  nui- 
sance is  not  confined  to  such  erections  or  employments  as  arc  prejudicial 
to  health,  but  embraces  every  thing  that  incommodes  and  offends,  and  ren- 
ders the  enjoyment  of  life  and  property  uncomfortable.4     It  is  of  two 

1  Curtis  on  Copyright,  93  et  seq.  Story's        3  Id.     Granaru  v.  Dunken,  1   Ball  & 
Eq.  Jurisp.  §§  945,  948.  Gee  v.  Pritchard,    Beaty,  209. 
2  Swanst,  R.  403.  4  Aldred's  case,  9  Co.  58,  a.     Tanner 

*  Percival  v.  Pbipps,  2  Ves.  &  B.  19.  v.  The  Trustees  of  Albion  village,  5  Hill, 
Ede:;  on  Inj.  325.  521.   Rex  v.  Papineau,  Stra.  686.     Brady 

.  Weeks  ?  Barb.  S.  C.  R  157. 


Oh.  6.J  To  Suppress  Nuisances.  389 

kinds,  common  and  private  nuisances.  The  first  is  an  offense  against 
the  public,  either  by  doing  a  thing  which  tends  to  the  annoyance  of  the 
public  generally,  or  by  neglecting  to  do  a  thing  which  the  common  good 
requires.'  The  last,  is  where  the  injury  either  relates  to  an  individual 
or  his  property.  For  punishing  or  suppressing  a  public  or  common  nui- 
saneej  the  remedy  is  by  indictment,  at  the  suit  of  the  people.  No  action 
lies  by  an  individual  for  a  common  nuisance,  except  when  a  private  per- 
son suffers  some  extraordinary  damage,  beyond  the  rest  of  the  people  ; 
in  which  case  he  shall  have  a  private  satisfaction  by  action.2 

Courts  of  equity  do  not  restrain  nuisances,  except  in  such  cases  as 
where  an  action  at  law  could  be  maintained.  In  this  respect  equity  fol- 
lows the  law.  Bills  to  restrain  nuisances,  said  Lord  Hardwicke,  must 
extend  to  such  only  as  are  nuisances  at  law.  The  fears  of  mankind, 
fchougl  they  maybe  reasonable  ones,  will  not  create  a  nuisance.3  An 
injunction  has  been  refused,  to  restrain  the  building  of  a  house  to  inoc- 
ulate for  the  small  pox,4  and  in  another  case,  to  restrain  the  burning 
of  bricks  near  the  habitations  of  men.5 

In  many  of  the  eases  which  are  indictable,  as  common  nuisances,  courts 
of  equity  have  no  cognizance.  The  remedy  at  the  suit  of  the  people  by 
a  public  prosecution  will,  in  general,  accomplish  the  object  of  suppress- 
ing the  injury,  and  render  unnecessary  the  prosecution  by  individuals. 
[t  may  not  be  without  use  to  notice  some  of  the  instances  in  which  cer- 
tain acts  have  been  adjudged  at  law  public  nuisances. 

'With  regard  to  offensive  trades,  it  lias  been  held  that  a  brew-house, 
erected  in  such  an  inconvenient  place  that  the  business  cannot  be  carried 
on  without  greatly  incommoding  the  neighorhood,  may  be  indicted  as  a 
common  nuisance;  and  so,  in  the  like  case,  may  &  glass-house  or  sicine- 
yurd.  With  respect  to  a  candle  manufactory,  it  has  been  held  that  it 
is  no  common  nuisance  to  make  candles  in  a  town,  because  the  needful- 
ness of  them  shall  dispense  with  the  noisomeness  of  the  smell ;  but  the 
reasonableness  of  this  opinion  seems  justly  to  be  questionable,  because, 
whatever  necessity  there  may  be  that  candles  be  made,  it  cannot  be  pre- 
tended that  it  is  necessary  to  make  them  in  a  town.6 

It  is  not  necessary,  to  constitute  a  nuisance,  that  the  smell  created  by 
it  is  injurious  to  health.  If  there  be  smells  offensive  to  the  senses,  that 
is  enough,  as  the  neighborhood  has  a  right  to  fresh  and  pure  air.     Nor 

1  Bac.  Abr.  title  Nuisance.  Boom  v.  City  of  Utica,  2  Barb.  S.  C.  R. 

a  3  BL  Com.   220.     Lansing  v.  Smith,  104. 

4  Wend.  9,  per  Walworth,  Ch.  5  Duke  of  Grafton  v.  Uillard,  cited  18 

'  3  Atk.  751.  Yes  219. 

1  "d.     Baines  v.  Baker,  Ambler,   158.  '  EusseU  on  Crimes,  B.  2,  |  1. 


390  Of  iNJTnvcTioirs  [Ch.  P> 

"will  the  presence  of  other  nuisances  justify  any  one  of  them.  One  ia 
not  the  less  subject  to  prosecution,  because  others  are  culpable.  The 
question,  with  regard  to  that  class  of  nuisances,  is  whether  the  bu»iness 
carried  on  is  productive  of  smells  offensive  to  persons  passing  along 
the  public  highway.1 

Erecting  gunpowder  mills,  or  keeping  gunpowder  magazines  near  a 
town,  is  a  nuisance  at  the  common  law.  Disorderly  inns,  ale  houses, 
bawdy  bouses,  gaming  houses,  play  houses,  unlicensed  or  improperly 
conducted  booths  and  stages  for  rope  dancers,  mountebanks,  and  the 
like,  are  public  nuisances,  and  may  be  indicted.2 

So,  it  seems,  erections  of  every  kind,  adapted  to  sports  or  amusements, 
having  no  useful  end,  and  notoriously  fitted  up  and  continued,  in  order  to 
make  a  profit  for  the  owner,  are  regarded  by  the  common  law  as  nui 
sauces.  On  this  principle  the  supreme  court  of  New- York  held,  in  a 
recent  case,  that  a  bowling  alley  kept  for  gain  or  hire  is  a  public 
nuisance  at  common  law,  though  gambling  therein  be  expressly  prohibited 
by  its  owner.3  So,  a  house  in  a  populous  town,  divided  for  poor  people 
to  inhabit  during  the  prevalence  of  an  infectious  disease,  is  a  nuisance.4 
Such  a  building,  during  the  prevalence  of  the  Asiatic  cholera  in  1832, 
in  the  city  of  Albany,  was  adjudged  a  public  nuisance,  and  the  party 
who  tore  it  down,  by  order  of  the  board  of  health,  obtained  a  verdict, 
when  sued  for  damages  by  the  owner.5  So  manufactures,  lawful  in 
themselves,  may  become  nuisances,  if  carried  on  in  parts  of  towns  where 
they  cannot  but  greatly  incommode  the  inhabitants  and  destroy  their 
health.6  So  a  mill  for  steeping  sheepskins  in  water,  near  to  and  adjoining 
the  highway  and  several  dwelling  houses,  by  which  the  air  was  corrupted, 
has  been  held  to  be  a  nuisance.7 

Not  only  the  party  who  continues  a  nuisance,  but  the  party  who 
originally  began  it,  is  responsible  to  the  public.  One  who  demises  his 
property  for  the  purpose  of  having  it  used  in  a  way  offensive  to  others, 
may  himself  be  treated  as  the  author  of  the  mischief.  The  renting  of 
a  house  for  purpose  of  prostitution  is  indictable,  as  well  as  the  keeping 
of  such  a  house.8 

1  Evissell  on  Crimes,  B.  2,  §  1.  Bex  v.  6  Meeker  t.  Van  Bensselaer,  15  Wen  1 
Eeil,  2  0.  &  P.  485.  397. 

2  Russell  on  Crimes,  vol.  1  p.  322.  6  Per  Savage,  in  the  above  case. 

3  Taimer  v.  Trustees  of  Albion.  6  Hill,  7  Rex  v.  Papineau,  1  Str.  68G. 

121.  8  The  People  v.  Erwin,  4  Denio,  129. 

4  Id.  128,  per  Cowen,  J.,  citing  1  Boll.    Fish  v.  Dodge,  id.  317. 
Abr.  139,  tit.  Nuisance. 


Ch.  6.]  To  Suppress  Nuisances.  391 

The  foregoing  cases  are  enough  to  illustrate  the  general  principles  by 
which  the  court  is  governed  in  these  cases.  The  remedy  by  indictment 
is  at  the  suit  of  the  people,  and  embraces  all  cases  of  common  nuisance. 
At  common  law.  an  assize  of  nuisance  lay  against  him  who  committed  the 
nuisance.  But  the  ancient  remedies  long  since  gave  way  to  an  action 
on  the  case,  or  to  a  bill  in  equity.  The  Revised  Statutes  retain  the 
writ  of  nuisance,  with  some  modifications.1  But  few  actions  were  ever 
brought  under  the  statute,2  and  the  writ  itself  was  expressly  abolished  by 
the  Code  of  Procedure,  and  the  injuries  formerly  remediable  by  it  were 
made  subjects  of  action  as  other  injuries,  and  a  judgment  for  damages, 
or  for  the  removal  of  the  nuisance,  or  both,  is  prescribed.3 

In  this  state,  the  aid  of  a  court  of  equity  has  frequently  been  invoked 
to  restrain  the  commission  or  the  continuance  of  a  nuisance,  as  well  in  be- 
half of  the  attorney  general  suing  for  the  people,  as  of  individuals  to 
protect  their  own  property. 

In  one  case  Chancellor  "Walworth  held,  that  the  occupation  of  a  building, 
in  the  city  of  New- York,  as  a  slaughter  house,  was  pri?na  facie  a  nui- 
sance to  the  neighboring  inhabitants,  and  might  be  restrained  by  injunc- 
tion. The  injunction  was  at  first  granted  to  prevent  the  erection  of  the 
building  for  a  slaughter  house,  and  was  afterwards  so  modified  as  to  per- 
mit the  defendant  to  proceed  with  the  erection  of  the  building,  but  re- 
straining him  from  using  it,  or  permitting  it  to  be  used  for  that  purpose. 
The  defendant,  by  his  answer,  insisted  that  he  intended  to  use  the  slaugh- 
ter house  in  such  a  manner  that  it  would  not  be  a  nuisance  to  the  com- 
plainants or  to  the  other  inhabitants  in  the  neighborhood,  and  on  that 
ground  applied  to  the  vice  chancellor  to  dissolve  the  injunction,  which  the 
vice  chancellor  refused,  and  his  order  was,  on  appeal,  affirmed  by  the  chan- 
cellor.4 The  doctrine  of  this  case  was  approved  by  Paige,  J.  in  a  recent 
case,  and  was  so  far  extended  as  to  apply  to  a  party  whose  slaughter  house 
was,  when  erected,  remote  from  the  thickly  settled  parts  of  the  crty 
and  incommoded  no  one,  and  in  favor  of  a  plaintiff,  who,  after  the  erection 
of  the  nuisance,  built  his  dwelling  house  beside  it.5  The  learned  judge 
remarked,  that  as  the  city  extends,  such  nuisances  should  be  removed  to 
the  vacant  ground  beyond  the  immediate  neighborhood  of  the  residences 
of  the  citizens. 

The  principle  which  gives  a  party  who  builds  on  his  own  land,  beside  a 
nuisance  previously  erected,  a  right  to  have  the  nuisance  abated  is,  that 

1  2  It.  S.  332.  *  Catlin  v.  Valentine,  9  Paige,  573. 

2  Brown  v.  Wood  worth,  5  Barb.  550.  s  Brady  v.  Weeks,  3  Barb.  S.  C.  R.  159 
■  Code,  $  454. 


392 


Of  Injunctions. 


[Ch.  6 


a  continuation  of  a  nuisance  is  regarded  as  a  new  nuisance.'  So  where  a 
man  erected  a  house  on  his  own  land,  so  near  the  land  of  his  neighbor  that 
it  overhung  his  neighbor's  land  three  feet,  and  threw  the  water  upon  the 
land  of  the  latter,  it  was  adjudged  that  a  subsequent  feoffee  of  the  lattei 
could  maintain  an  action  against  the  feoffee  of  the  wrongdoer,  if  the 
nuisar  ze  be  not  reformed  after  request  made  ;  but  against  him  who  did 
the  wrong  the  action  lies  -without  request.  And  this  went  upon  the  ground 
that  the  dropping  of  the  water  was  a  new  wrong.2 

To  justify  the  interposition  of  the  court  by  injunction  to  restrain  a 
nuisance,  the  plaintiff's  title  must  be  free  from  doubt.  If  his  title  be 
conceded,  there  is  no  occasion  to  have  it  established  by  a  verdict  in  a 
court  of  law.  Where  a  plaintiff  has  been,  immemorially,  in  the  enjoyment 
of  a  stream  of  water  flowing  through  his  land,  and  is  in  the  actual  pos- 
session, equity  will  restrain  the  obstruction  or  diversion  of  the  water,  or 
any  important  part  of  it,  to  the  injury  of  the  plaintiff.  The  diversion  or 
obstruction  of  a  water  course  is  a  private  nuisance.3 

The  court  will  restrain  a  defendant  from  obstructing  a  public  street  in 
a  city,  by  building  a  house  thereon,  if  it  produces  a  special  injury  to  the 
plaintiff,  by  affecting  the  enjoyment  of  his  property  and  the  value  of  it." 
Though  the  act  be  a  public  nuisance,  still,  if  it  work  a  special  grievance 
to  the  plaintiff,  he  is  entitled  to  the  aid  of  the  court. 

Where  the  thing  complained  of  is  in  itself  a  nuisance,  and  there  is  no 
doubt  as  to  the  plaintiff's  right,  the  court  will  interfere  to  stay  irreparable 
mischief,  without  waiting  for  the  result  of  a  trial.5  But  where  the  thing 
sought  to  be  restrained  is  not  in  itself  noxious,  but  only  something  which 
may,  according  to  circumstances,  prove  to  be  so,  the  court  will  await  the 
result  of  a  trial  at  law,  or  of  an  issue  awarded  by  itself.6  Hence,  in  case 
of  a  dispute  as  to  the  right  of  the  enjoyment  of  portions  of  the  water  of 
a  stream,  for  manufacturing  purposes,  equity  ought  not  to  interfere  by 
injunction  unless  the  right  of  the  complainant  is  capable  of  clear  ascer- 
tainment ;  and  then,  only,  to  prevent  irreparable  mischief.7 

An  injunction  lies  to  protect  an  individual  or  corporation  in  the  enjoy- 


1  Per  Paige,  in  Brady  v.  "Weeks,  3  Barb. 
S.  C.  R.  1G0. 

8  Penruddock's  case,  5  Co.  101.  Blunt 
v.  Aiken,  15  Wend.  524.  "Westbourn  v. 
Mordant,  Cro.  Eliz.  191.  Stapple  v.  Story, 
10  Mass.  74. 

*  Gardner  v.  Tillage  of  Newburgh,  2 
J.  Ch.  R.  161,  Gifford  v.  Reid,  Hopk. 
416. 


4  Corning  v.  Lowrie,  6  J.  Cb.  R.  430. 

6  Mohawk  Bridge  Co.  v.  U.  &  S.  Rai. 
road,  6  Paige,  554,-563. 

6  Id.  The  Hudson  and  D.  Canal  Co. 
v.  Erie  Railroad  Co.  9  id.  323.  The  Earl 
of  Ripon  v.  Hobart,  Cooper's  R.  343 
S.  C.,3Myl.  &K.  169. 

1  Fisk  v.  Wilbur,  7  Barb.  395. 


Ch.  O.J  To  Suppress  Nuisances.  393 

ment  of  a  franchise  or  privilege  conferred  by  statute  or  prescription.  Thus, 
where  a  turnpike  company,  incorporated  with  the  exclusive  privilege  of 
erecting  toll  gates,  and  receiving  toll,  had  opened  and  established  a  road, 
and  certain  persons,  to  avoid  paying  toll,  opened  a  by-road,  at  their  own 
expense,  near  the  turnpike,  by  which  travelers  were  enabled  to  avoid 
passing  through  the  gate,  the  court  granted  a  perpetual  injunction  to  pre- 
vent the  use  of  such  road,  and  ordered  it  to  be  shut  up.1  The  ground  of 
the  jurisdiction,  in  such  cases,  is  the  avoiding  of  multiplicity  of  suits,  and 
the  protection  of  the  plaintiff's  right  from  a  fraudulent  evasion.  The 
plaintiff  must  be  in  possession  of  the  franchise,  and  his  title  be  beyond 
dispute,  to  entitle  him  to  the  relief  by  injunction. 

The  principle  applies  as  well  to  a  bridge  or  ferry,  at  which  toll  may  be 
lawfully  received  by  the  plaintiff,  as  to  a  turnpike  company.  When  one 
has  a  grant  of  a  ferry,  bridge  or  road,  by  prescription,  with  the  exclusive 
right  of  taking  toll,  the  erection  of  another  ferry,  bridge  or  road,  so  near 
it  as  to  create  a  competition  injurious  to  the  franchise,  is  in  respect  to 
such  franchise  a  nuisance,  and  equity  will  grant  a  perpetual  injunction  to 
secure  the  enjoyment  of  such  statute  franchise,  and  prevent  the  use  of  t]ie 
rival  establishment.2  The  same  doctrine  applies  to  any  exclusive  privi- 
lege created  by  statute  ;  all  such  privileges  come  within  the  equity  and 
reason  of  the  principle  ;  no  rival  road,  bridge,  ferry,  or  other  establish- 
ment of  a  similar  kind,  and  for  like  purposes,  can  be  tolerated  so  near  to 
the  other  as  materially  to  affect  and  take  away  its  custom.  It  operates  as 
a  fraud  upon  the  grant,  and  goes  to  defeat  it.  The  consideration  by 
which  individuals  are  invited  to  expend  money  upon  great,  expensive  and 
h  izardous  public  works,  as  roads  and  bridges,  and  to  become  bound  to 
k;ep  them  in  constant  and  good  repair,  is  a  grant  of  a  right  to  an  exclu- 
sive toll.  This  right,  thus  purchased  for  a  valuable  consideration,  cannot 
be  taken  away  by  direct  or  indirect  means,  devised  for  the  purpose,  both 
of  which  are  equally  unlawful.3 

In  the  cases  above  mentioned,  the  rival  establishment  of  the  defendant 
was  not  sanctioned  by  any  statute,  but  was  the  act  of  the  individual  de- 
fendant alone.  His  act  was  held  to  be  wrongful  and  fraudulent  as  against 
the  plaintiff  deriving  his  title  by  statute,  or  prescription.  But  if  the 
grant  by  statute  to  the  plaintiff  of  the  franchise  of  a  bridge,  for  example, 
contains  no  words,  excluding  the  right  of  the  legislative  power  to  grant  a 

1  Croton  Turnpike  v.  Ryder,  1  J.  Ch.  Ch.  R.  101,  111.    Ogden  v.  Gibhons,  4 

R.  611.     Livingston  v.  Van  Iugen,  9  J.  id.  150,  160. 

R.   .ju7.     Whitchurch  v.    Hide,   2   Atk.  3  Per  Kent,  Ch.,  in  Newburgh  Turn- 

891.  pike  v.Miller,  Sid.  112. 

-  Newburgh  Turnpike  v.  Miller,  5  J. 

Kw.  JUR.  o0 


394  Of  Injunctions.  [Ch  b 

similar  franchise  to  others,  accommodating  the  same  line  of  traval,  the  ex 
elusive  privilege  of  the  first  grantee  must  be  treated  as  subordinate  to 
the  right  of  the  legislature  to  make  such  other  or  further  grants  as  they 
may  deem  expedient.1  The  second  grant,  being  derived  from  the  same- 
source  as  the  first,  cannot  be  treated  as  a  nuisance  to  the  franchise  first 
conferred.  Public  grants  are  construed  strictly  ;  and  the  grantees  take 
nothing  by  implication.2  Although  the  first  grantee  will  be  protected  in 
his  franchise  as  against  an  unauthorized  and  fraudulent  competition,  yet 
he  has  no  claim  to  an  injunction  against  subsequent  grantees,  from  th<". 
same  legislative  power,  unless  he  can  show  in  its  grant  an  express  exclu 
sion  of  all  power  to  make  another  grant,  which  will  conflict  with  it. 

To  constitute  a  private  nuisance  to  a  dwelling  house,  so  as  to  give 
to  the  owner  a  right  of  action,  it  is  not  necessary  that  the  latter 
should  have .  been  driven  from  it.  It  has  already  been  said,  that  it  is 
enough  that  the  enjoyment  of  life  and  property  has  been  rendered  un- 
comfortable.3 This  may  be  produced  by  trades  that  occasion  great  noise, 
dust  and  smoke,  as  well  as  by  occupations  which  immediately  affect  the 
health.  Thus,  the  manufacturing  of  steam  engine  boilers,  though  a 
lawful  business,  may  be  carried  on  in  such  places,  and  in  such  a  manner, 
as  to  become  a  great  annoyance  to  the  immediate  neighbors,  and  to  en- 
title them  to  redress  by  a  civil  action.4 

An  ordinary  instance  of  the  granting  of  an  injunction  in  England,  is  to 
restrain  a  party  from  building  so  near  the  plaintiff's  house  as  to  darken 
his  windows.  But  the  injunction  in  these  cases  will  not  be  granted,  un- 
less the  windows  in  question  be  ancient  lights,  and  the  act  is  in  violation 
of  some  agreement,  either  express  or  implied.5  According  to  the  modern 
English  doctrine,  the  quiet  and  uninterrupted  enjoyment  and  possession  of 
window  lights  for  twenty  years  is  sufficient  ground  for  a  jury  to  presume 
a  covenant,  provided  the  evidence  be  such  that  the  owner  of  the  adjoin- 
ing premises  had  knowledge,  during  that  perio'd,  of  the  fact.  The  knowl 
edge  of  the  tenant  alone  is  not  enough  for  this  purpose.6  This  right 
cannot  be  claimed  in  opposition  to  a  grant,  without  reservation,  by  the 
owner  of  the  adjoining  land.7 

An  action  for  opening  a  window  to  disturb  the  privacy  of  the  plaintiff 

1  Charles    River   Bridge    v.    "Warren        6  Eden  on  Inj.  269. 

Bridge,  11  Peters,  420.  6  Cross  v.  Lewis,  2B.&C.  686.     Dan- 

2  Id.  iel  v.  North,  11  East,  372. 

8  Rex  v.  White,  1  Burr.  337,  per  Lord        T  Palmer  v.  Fletcher,  1  Lev.  122.    2 
Mansfield.    Eish  v.  Dodge,  4  Denio,  326.    Steph.  N.  P.  1015. 
*  Id. 


Ch.  G.J  Ancient  Lights.  395 

cannot  be  maintained,  and  the  only  remedy  is  to  build  on  the  adjoining 
land  opposite  to  the  offensive  window.1 

The  English  doctrine  with  respect  to  ancient  lights  has  not  been  gen- 
erally adopted  in  this  country.  In  one  case,  Ch.  Justice  Savage  assumed 
that  an  action  upon  the  case  lay  for  stopping  the  ancient  lights  of  anoth- 
er, but  the  case  he  was  considering  called  for  no  decision  of  the  point.1 
In  a  later  case,  the  reasoning  of  Bronson,  J.,  tends  to  disprove  the  exist- 
ence, in  this  state,  of  the  modern  English  doctrine  on  the  subject  of  lights. 
He  thinks  it  cannot  be  applied  to  the  growing  cities  and  villages  of  this 
country,  without  working  the  most  mischievous  injustice  ;  and  that  it  has 
never  been  deemed  a  part  of  our  law.3  The  case  did  not  call  for  a  decis- 
ion to  that  extent.  The  learned  judge  at  the  circuit  having  ruled  that 
the  law  presumed  a  grant  as  to  windows,  from  a  user  of  twenty  years,  and 
declined  leaving  to  the  jury  the  question  of  presumption,  and  instructed 
them  that  the  plaintiff  was  entitled  to  their  verdict,  the  court  held  that 
the  defendant  was  entitled  to  a  new  trial,  in  order  that  the  question  of 
presumption  of  a  grant  might  be  submitted  to  the  jury.  It  would  seem 
that  though  the  court  cannot,  as  matter  of  law,  yet  a  jury  may,  as  matter 
of  fact,  presume  a  grant,  from  a  quiet  and  uninterrupted  possession  of 
ancient  lights,  for  a  period  of  twenty  years.4  And  it  would  seem,  also, 
that  the  presumption  in  these  cases  is  a  mixed  one  of  law  and  fact,  to 
be  passed  upon  by  the  jury,  under  the  direction  of  the  court.  Lord 
Mansfield,  on  one  occasion,  said  the  enjoyment  of  lights,  with  the  defend- 
ant's acquiescence  for  twenty  years,  is  such  decisive  presumption  of  a 
right  by  grant,  or  otherwise,  that,  unless  contradicted  or  explained,  the 
jury  ought  to  believe  it ;  but  it  is  impossible  that  length  of  time  can  be 
said  to  be  an  absolute  bar,  like  a  statute  of  limitations  ;  it  is  certainly  a 
presumptive  bar,  which  ought  to  go  to  a  jury.5  In  a  plain  case,  where 
there  is  no  evidence  to  repel  the  presumption  arising  from  twenty  years 
uninterrupted  adverse  user  of  an  incorporeal  right,  the  judge  may  very 
properly  instruct  the  jury,  that  it  is  their  duty  to  find  in  favor  of  the  par- 
ty who  has  had  the  enjoyment ;  but  still  it  is  a  question  for  the  jury.6 

If  the  right  at  law  be  clear,  and  not  doubtful  or  in  dispute,  the  same 
principle,  which  justifies  the  interposition  of  courts  of  equity  to  restrain 


1  Chandler  v.  Thompson,  3  Camp.  80,  *  Id. 

per  Le  Blanck,  J.    Mahan  v.  Brown,  13  6  Darwin   v.  Upton,    2  Saimd.  175,  b, 

Wend.  281.  n.  2.    Parker  v.  Foote,  19  Wend.  314. 

3  -Mahan  v.  Brown,  id.  263.  6  Per  Branson,  J.,  in  same  ease,  316. 

*  Parker  v.  Foote,  19  id.  318.  And  see  3  Kent's  Com.  448. 


396  Of  Injunctions.  [Ch.  6. 

or  prevent  other  private  nuisances,  will  sanction  its  interference  to  prevent 
by  injunction  the  obstruction  of  ancient  lights.1 

Notwithstanding  the  doubt  cast  upon  the  subject  by  some  dicta  in  Par- 
ker v.  Foote,  (supra,)  it  is,  nevertheless,  believed,  that  where  the  enjoyment 
of  the  easement  has  been  uninterrupted  for  the  period  of  twenty  years, 
and  under  a  claim  or  assertion  of  right,  and  with  the  knowledge  and  ac- 
quiescence  of  the  owner  of  the  adjoining  land,  and  where  no  circumstances 
exist  tending  to  repel  the  presumption,  the  jury  may  infer  the  right. 

Nor  is  it  indispensable  in  order  to  acquire  the  right  in  question,  that 
the  building  should  be  erected  on  the  extremity  of  the  plaintiff's  lot.  If 
it  be  erected  so  near  the  line,  that  a  building  erected  on  the  extremity  of 
the  adjoining  lot  will  darken  the  windows,  the  plaintiff  is  entitled  to  the 
like  protection  as  if  his  own  house  was  erected  on  his  own  line.2  But  this 
does  not  entitle  the  plaintiff  to  relief,  unless  the  obstruction  be  such  as 
materially  to  affect  the  light  in  the  plaintiff's  house.  It  must  be  such 
as  to  occasion  a  real  diminution  of  the  value  of  the  plaintiff's  property.3 
It  is  not  sufficient,  to  constitute  an  illegal  obstruction,  that  the  plaintiff  had 
in  fact  less  light  than  before  ;  nor  that  his  house  could  not  be  used  for  all 
the  purposes  to  which  it  might  otherwise  have  been  applied.  In  order  to 
give  a  right  of  action,  there  must  be  a  substantial  privation  of  light,  sufficient 
to  render  the  occupation  of  the  house  uncomfortable,  and  to  prevent  the 
plaintiff  from  carrying  on  his  accustomed  business  on  the  premises,  as  ben- 
eficially as  he  had  formerly  done.4 

The  obstruction  of  a  prospect,  or  of  the  free  circulation  of  air,  occa- 
sioned by  building  on  one's  own  land,  in  the  usual  and  reasonable  manner, 
will  not  be  enjoined  by  a  court  of  equity.  The  erection  of  a  building  in  a 
crowded  city,  on  the  opposite  side  of  the  street,  is  clearly  lawful,  although 
it  may  intercept  the  view  from  the  plaintiff's  premises,  and  impede,  to  a 
certain  extent,  the  circulation  of  air.5 

It  is  said  to  be  the  usual  and  most  correct  mode  of  proceeding  in  equity, 
in  cases  of  public  nuisance,  for  the  attorney  general  to  file  an  information.6 
But  it  is  thought,  nevertheless,  that  he  may  maintain  a  bill  for  that  pur- 
pose. In  a  case  in  this  state,  where  the  proceeding  was  by  information 
to  enjoin  an  unincorporated  banking  company  from  the  exercise  of  the 

1  Robeson  v.  Pettinger,  1  Gi  eeu's  Ch.  Best,  Ch.  J.     Parker  v.  Smith,  5  C.  &  P. 

P.  57 ;  and  see  Banks  v.  American  Tract  438,  per  Tinclal,  Ch.  J. 

Society,  3  Saund.  Ch.  P.  438.  5  Gwin  v.  Melmoth,  Freeman's  Ch.  P. 

3  Cross  v.  Lewis,  2  B.  &  C.  GS6.  505. 

3  Pringle  v.  Wernham,  7  C.  &  P.  377,  6  Baines  v.  Baker,  Air  bier,  159.  3 
per  Lord  Denman.  Atk.  351. 

4  Back  v.  Stacey,  2  C.  &  P.  -1C5,  per 


Oh.  6.]  Against  Corporations.  397 

franchise  of  banking,1  Chancellor  Kent  thought  that  unauthorized  bank- 
ing was  not  such  a  nuisance  as  a  court  of  equity  could  restrain,  and  that 
the  remedy  was  in  a  court  of  law.  Whatever  ground  formerly  existed  for 
doubts  on  this  subject,  the  Revised  Statutes  have  removed  them.  By  the 
act  concerning  proceedings  against  corporations  in  equity  the  chancellor 
was  empowered,  upon  a  bill  filed  by  the  attorney  general,  to  restrain  by 
injunction  any  corporation  from  assuming  or  exercising  any  franchise,  lib- 
erty or  privilege,  or  transacting  any  business,  not  allowed  by  its  charter  ; 
and  in  the  same  manner,  to  restrain  any  individual  from  exercising  any 
corporate  rights,  privileges  or  franchises,  not  granted  to  them  by  any  law 
of  this  state.2  The  jurisdiction  over  the  directors  and  the  funds  of  the  cor- 
poration is  most  ample,  for  all  purposes  of  relief;  and  authority  is  given, 
when  the  court  is  possessed  of  the  cause,  to  restrain  all  proceedings  at 
law.  by  any  creditor,  against  the  defendant  in  the  suit. 

The  jurisdiction  which  courts  of  equity  exercise  over  individuals  ex- 
tends to  acts  done,  or  omitted  to  be  done,  by  corporations,  whether  munici- 
pal or  private.  Where  the  plaintiff,  and  those  under  whom  he  claimed, 
had  been  in  the  quiet  and  uninterrupted  possession  of  a  lot  of  land  fur 
twenty-five  years  and  upwards,  the  court  restrained  by  injunction  t!ie 
corporation  of  the  city  of  New- York  from  entering  upon  and  disturbing 
such  possession,  under  pretense  that  the  buildings  encroached  on  the  pub- 
lic street,  until  the  right  of  the  corporation  was  first  established  at  law.3 

In  the  owning  of  title  to  land,  a  municipal  corporation  exercises  not  a 
public  but  a  private  function.  In. respect  to  such  property,  the  corpora- 
tion stands  upon  the  same  footing  as  an  individual,  and  has  no  more  right 
to  erect  and  maintain  a  nuisance  on  its  land  than  possessed  by  a  private 
citizen,4  and  it  will  be  restrained  in  like  manner.  So  where  land  is  con- 
veyed to  a  city  in  trust,  to  be  kept  open  as  a  public  street,  one  who  owns 
a  lot  upon  aud  has  been  assessed  for  opening  it,  can  enforce  the  execution 
of  the  trust ;  and  if  the  corporation  permits  the  adjoining  owners  to 
inclose  portions  of  it  for  court  yards,  he  may  have  an  injunction  against 
it.5  So  where  the  trustees  of  a  village  are  not  authorized  by  their  char- 
ter to  alter  the  grade  of  a  street,  after  the  same  has  been  regulated  and 
established  by  them,  as  directed  by  the  act  of  incorporations,  the  owners 
of  adjoining  land,  which  will  be  seriously  injured  by  an  alteration  of  the 
grade,  are  entitled  to  the  interposition  of  a  court  of  equity  by  injunction 

'  Att'y  Gen.  v.  Utica  Ins.  Co.  2  J.  Ch.        4  Brown  v.  Mayor  of  N.  Y.  3  liarb.  S. 

C.  R.  255,  258. 
-  2  R.  8.  4G2,  §  1.  6  Lawrence  v.  Mayor  of  N.  Y.  2  Barb 

'  Yarick  v.  Mayor  of  N.  Y.  4  J.  Ch.    S.  C.  R.  578. 
R  53. 


898  Of  Injunctions.  [Ob.  6 

to  restrain  trustees  from  altering  the  grade.1  In  like  manner  an  injunc- 
tion will  lie  at  the  suit  of  the  people,  to  prevent  the  tapping  of  a  public 
canal  by  an  individual ;  and,  it  seems,  the  fact  that  the  encroachment  will 
not  be  injurious  to  the  canal,  is  no  objection  to  granting  the  writ.  The 
belief  of  the  officer  in  charge  of  the  work  that  the  encroachment  will  be 
injurious  is  decisive,  though  opinions  to  the  contrary  be  sworn  to.2 

Analogous  to  nuisance  is  a  purpresture.  A  purpresture,  according  to 
Ooke,  is  where  one  encroacheth,  or  makes  that  several  to  himself,  which 
ought  to  be  common  to  many.3  In  its  common  acceptation,  it  is  at  pres- 
ent understood  to  mean  an  encroachment  upon,  and  inclosure  of  the  prop- 
erty of  the  public  in  a  highway,  river,  harbor  or  street.4  The  remedy 
for  this  species  of  injury  is  either  by  information  of  intrusion  at  common 
law,  or  by  information  at  the  suit  of  the  attorney  general  in  equity.5  In 
case  of  judgment  upon  an  information  of  intrusion,  the  erection  complained 
of,  whether  it  be  a  nuisance  or  not,  is  abated ;  but  upon  a  decree  in  an 
information  in  equity,  if  it  appears  to  be  a  purpresture,  without  being 
at  the  same  time  a  nuisance,  the  court  may  direct  an  inquiry  whether  it 
be  most  beneficial  to  the  crown  to  abate  the  purpresture,  or  to  suffer  the 
erection  to  remain,  and  be  arrented.6  But  if  the  purpresture  be  also  a 
nuisance,  this  cannot  be  done,  for  the  crown  cannot  sanction  a  nui- 
sance.7 

A  purpresture  which  is  not  a  nuisance,  can  be  suppressed  only  on  the 
application  of  the  public,  through  the  attorney  general,  and  is  not  the  foun- 
dation of  a  private  action,  either  at  law  or  in  equity. 

A  purpresture  may  exist  without  being  a  nuisance.  But  in  most  cases 
an  inclosure  of  a  street,  river  or  harbor,  amounting  to  a  purpresture.  is 
also  a  nuisance,  either  public  or  private,  or  perhaps  both  ;  and  may  be 
suppressed,  like  other  nuisances,  by  indictment,  or  by  a  proceeding  in 
equity.  Prima  facie,  says  Chancellor  Walworth,  the  person  who  appro- 
priates any  part  of  a  public  street,  or  harbor,  exclusively  and  permanent- 
ly to  his  own  use,  without  the  consent  of  the  legislature  or  the  municipal 
authorities,  is  guilty  of  a  nuisance,  and  he  subjects  himself  to  the  burden 
of  proving  that  it  is  no  injury  to  the  public,  and  that  a  public  right  has 

<  lakleyv.  Trustees  of  Williarnsburgh,  *  Eden  on  Inj.  259.     Att'y  Gen.   v. 

6  Paige,  262.     Trustees  of  Watertown  v.  Utica  las.  Co.  2  J.  Ch.  E.  381. 

Cowen,  i  id.  510.    Att'y  Gen.  v.  Forbes,  5  Id.,  and  Att'y  Gen.  v.  Kicliards,  2 

2  Myl.  &  Craig,  123.  Anst.  603. 

2  The  Att'y  Gen.  v.  The  Cohoes  Co.  6  Id. 

6  Paige,  133.  7  Id.     Res  v.  Grosvencr,  2  Stark.  1ST.  P. 

3  2  Inst.  38.  511. 


Ch.  6.]  "Wharves.     Bridges.  399 

not  been  violated.  On  this  principle,  where  a  floating  store-house  was 
permanently  moored  in  the  Albany  basin,  secured  in  its  place  by  means 
of  spiles  or  posts  driven  into  the  earth,  in  the  bottom  of  the  river,  and 
which  was  of  great  convenience  to  the  complainants,  and  those  having 
dealing  with  their  transportation  line,  in  the  transaction  of  their  business, 
the  court  of  chancery  held  it  to  be  a  nuisance,  and  refused  to  restrain  the 
corporation  of  the  city  of  Albany  from  removing  it  as  such.1  This  erec- 
tion fell  clearly  within  the  definition  of  a  purpresture,  but  it  was  also  a 
nuisance,  from  its  tendency  to  obstruct  the  free  passage  of  boats  and  other 
craft. 

The  erection  of  a  wharf  in  a  public  river  is  a  nuisance,  and  it  has  been 
held  to  lie  no  justification,  in  an  indictment,  that  it  has  been  beneficial  to 
the  public.2  In  one  case,  on  an  indictment  for  a  nuisance,  by  erecting 
staiths  in  a  navigable  river  for  loading  ships  with  coal,  the  learned  judge 
charged  the  jury  that  the  use  of  a  navigable  river  was  not  for  passage 
only,  but  for  other  important  rights,  which  might  supersede  the  right  of 
se  ;  and  that  where  a  great  public  benefit  accrued  from  that  which  oc- 
casioned  the  abridgment  of  the  right  of  passage,  that  abridgment  was  not 
a  nuisance,  but  proper  and  beneficial  :3  and  this  ruling  was  approved  by 
two  judges  against  the  opinion  of  Lord  Tenterden.  But  the  doctrine  of 
this  case  was  distinctly  overruled  in  a  later  case,  founded  upon  better 
is.4  It  was  thus  shown  that  the  violation  of  rights,  which  belong  to 
one  part  of  the  public,  cannot  be  vindicated  by  the  benefits  which  may 
arise  to  another  part  of  the  public  elsewhere. 

Many  of  the  principles  applicable  to  nuisances  to  navigable  rivers,  and 
the  remedies  therefor,  are  elaborately  discussed  in  a  recent  case  in  the 
supreme  courtof  the  United  States.5  While  it  is  admitted  that  the  fed- 
eral courts  have  no  jurisdiction  of  common  law  offenses,  and  cannot  sus- 
tain an  indictment  for  a  nuisance,  yet  their  chancery  jurisdiction  gives 
a  right  to  interpose  and  to  restrain  by  injunction  a  nuisance  which 
is  a  private  injury  to  the  complainants. 

The  right  of  navigating  a  public  river  does  not  conflict  with  the  right 
of  bridging  it.     These  two  rights  may  be  so  exercised  as  not  to  be  incom- 

1  Bart  v.  Mayor  of  Albany,  3  Paige,        6  State  of  Pennsylvania  v.  "Wheeling 

213;  affirmed  on  appeal,  9  Wend.  571.  Bridge  Co.  18  Eow.  616,  and  S.  C.  9 

J  l;  9]    Mica  v.  Caldwell,  1  Dallas,  150.  id.  647.     11  id.  528.     Devoe  v.  The  Pen 

Rex  v.  Grosvenor,  2  Stark,  N.  P.  511.  rose  Bridge  Co.  8  Am.  L.  Reg.  79.     And 

3  King  v.  Russell,  G  B.  <fc  C.  50.  see  an  able  article  in  3  Am.  L.  Register 

*  The  King  v.  Ward,  -i  Adolph.  &  Ell.  p.  1,  on  the   question,  are   Btate  bridges 

38-1.  constitutional? 


400  Of  Injunctions.  [Ch.  6 

patible  "with  each  other.  It  is  not  necessary  to  constitute  the  bridge  a 
nuisance,  that  it  should  entirely  stop  the  navigation  of  the  river.  If  it 
be  such  an  obstruction  as  to  change,  to  any  considerable  extent,  the  line 
of  transportation  through  Pennsylvania,  -whose  public  works -were  injured 
by  the  interruption  of  the  navigation  of  the  river,  so  as  to  divert  it  tc 
other  routes,  an  injury  is  done  to  that  state,  as  the  proprietors  of  those  pub- 
lic works.  Such  an  injury  could  not  be  adequately  compensated  at  law. 
From  the  nature  of  the  wrong,  the  compensation  could  not  be  measured 
or  ascertained  with  any  degree  of  precision.  It  would  be  of  daily  occur- 
rence, and  would  require  numerous  if  not  daily  prosecutions.  It  was 
therefore  a  proper  case  for  the  interposition  of  the  equity  powers  of  the 
court.  In  the  application  of  these  powers,  if  the  obstruction  by  the 
bridge  be  shown  to  be  a  purpresture,  or  a  nuisance,  there  is  no  room  for  a 
calculation  and  comparison  between  the  injuries  and  benefits  which  it 
produces. 

The  ground  of  equity  jurisdiction,  in  such  cases,  is  the  inadequacy  cf 
the  remedy  at  law,  the  necesssityof  restraining  irreparable  mischief,  arc! 
the  suppressing  vexatious  and  interminable  litigation.  Formerly,  courts 
of  equity  were  reluctant  to  interfere  by  injunction,  until  the  right  hid 
been  established  by  a  verdict.  But  if  the  thing  sought  to  be  suppressed 
be  in  itself  a  nuisance,  and  if  the  plaintiff's  title  to  relief  be  undoubted, 
there  is  no  occasion  to  wait  the  result  of  a  trial.1  The  doubts  expressed 
by  Lord  Eldon,-  and  Chancellor  Kent,3  do  not  now  exist,  whatever  grounds 
for  them  there  may  have  been  at  the  time  they  were  expressed.4 

The  remedy  in  equity  to  suppress  purprestures  and  nuisances  is  great- 
ly preferable  to  an  action  at  law  for  damages,  or  a  proceeding  by  indict- 
ment. In  the  latter  remedy,  there  is  less  facility  of  protecting  the  rights 
of  all  parties  than  by  the  former.  In  a  bill  to  restrain  a  bridge  as  a 
nuisance,  on  the  ground  of  its  obstructing  the  navigation  of  a  river,  by 
steamboats,  the  court  can  direct  such  modifications  and  alterations  in  the 
bridge,  without  abating  it  altogether,  as  will  remedy  the  evil  complain- 
ed of.5 

It  was  said  by  Lord  Brougham,  that  the  jurisdiction  of  courts  of  equity 
over  nuisances  by  injunction  is  of  recent  growth.  It  is  not,  therefore, 
a  matter  of  astonishment,  that  doubts  should  formerly  have  been  started, 


1  Ripon  v.  Ilobart,  3  Myl.  &  K.  169.        4  State   of  Penn.  v.  Wheeling  Bridge 
6  Paige,  563.  Co.  13  How.  568. 

'J  Att'y  Gen.  v.  Cleaver,  18  Ves.  218.        5  Id.  625,  626  the  decree  in  that  case. 

1  Att'y  Gen.  v.  Utica  Ins.  Co.  2  J.  Ch. 
R.  371,  383. 


Ch   G.j  Miscellaneous  Oases.  401 

where  none  exist  now  ;  nor  can  that  be  called  an  unwise  discretion,  which 
will  induce  the  court  to  pause  before  they  will  interrupt  men  in  those 
modes  of  improving  their  property,  which  are  jirima  facie  harmless  and 
praiseworthy  ;  and  which  may  be  beneficial  to  one  party,  and  possibly 
prejudicial  to  none.1 


SECTION  VIII. 

OF  INJUNCTIONS  TO  RESTRAIN  THE  MULTIPLICITY  OF  SUITS,  TO  QUIET  POSSESSIONS, 
TO  REPRESS  VEXATIOUS  LITIGATION,  TO  PROTECT  CORPORATIONS  IN  TUB  EN- 
JOYMENT OF  THEIR  FRANCHISES,  AND  IN  MISCELLANEOUS  CASK?. 

The  interference  of  equity  to  restrain  a  multiplicity  of  suits,  to  quiet 
possession,  and  to  repress  vexatious  litigation,  was  considered,  to  some  ex- 
tent, under  the  head  of  bills  of  peace  and  quia  timet.  The  mode  in  which 
relief  is  given  is,  in  general,  by  injunction.  The  restraining  of  a  judgment 
debtor  from  disposing  of  his  property,  is  often  granted  at  the  instance't)f 
a  judgment  creditor,  who  has  exhausted  his  remedy  at  law-  A  common 
interest  in  the  relief  sought,  is  sufficient  to  authorize  several  judgment 
creditors  of  the  same  debtor  to  unite  in  the  same  bill.2  But  enough  has 
been  said  on  this  subject,  under  the  head  of  fraud.  The  court  also  exer- 
cises the  power  of  restraining  the  usurpation  of  corporate  powers,  the 
alienation  of  corporate  property,  and  a  benign  jurisdiction  in  the  case 
of  insolvent  corporations.  This  jurisdiction  is  regulated  by  statute  in 
this  state,3  and  will  be  treated  more  fully  in  a  subsequent  chapter.4  And 
the  process  of  injunction  is  very  freely  used  as  the  instrument  of  effect- 
ing justice,  in  most  of  these  cases. 

A  few  cases  not  falling  under  the  preceding  heads  will  now  be  advert- 
ed to,  in  order  that  the  jurisdiction  in  this  class  of  cases  may  be  more 
fully  illustrated.  In  some  the  injunction  was  granted,  and  in  some  re- 
fused. 

Where  there  are  two  rival  works,  the  court  will  restrain  the  propri- 
etor of  one  of  them  from  advertising  it  in  terms  calculated  to  induce  the 
public  to  believe  that  it  is  the  other  work,  but  will  not  restrain  him  from 
publishing  an  advertisement  tending  to  disparage  the  other  work,* 

1  Ripon  v.  Ilobart,  3  My].  &,  K.  169.  *  See  post,  Cu.u\  XI. 

2  Edmeston  v.  Lyde,  1  Paige,  637.  6  Seeley  v.  Fisher,  11  Sim.  581.  Bran- 
Conro  v.  Port  Henry  Iron  Co.  12  Bar  \  27.    dreth  v.  Lance.  8  Paige,  2  i. 

*  2  R.  S.  462. 

Eq.  Jur.  51 


402  Op  Injunctions  [Ch.  6 

A  court  of  equity  "will  not  restrain  a  man  from  making  a  reasonable 
improvement  on  his  own  premises,  upon  the  ground  that  it  cannot  be 
made  without  endangering  an  edifice  erected  on  the  adjacent  premises. 
if  the  owner  of  the  adjacent  premises  does  not  possess  any  special  privi- 
leges protecting  him  from  the  consequences  of  such  improvement,  either 
by  prescription  or  by  grant,  from  the  person  making  the  improvement,  or 
from  those  under  whom  he  claims  title.1  A  man  is  not  answerable  for 
the  consequences  of  enjoying  his  own  property  in  the  way  in  which  such 
property  is  usually  enjoyed,  unless  an  injury  results  to  another  from  the 
want  of  proper  care  or  skill  on  his  part.2 

A  railroad  in  a  street,  pursuant  to  law,  and  so  constructed  and  used  as 
not  to  impair  the  public  right  of  way,  is  not  such  a  nuisance  to  the  own- 
ers of  property  upon  the  street  as  will  authorize  an  injunction.3 

We  alluded,  under  the  head  of  fraud,  to  the  subject  of  imitating  trade 
marks,  newspapers  and  the  like,  and  remarked  that  equity  granted  relief 
in  such  cases  on  the  ground  of  fraud.4  The  mode  of  redress  is  in  such 
cases  by  injunction.  A  party  may  have  a  property  in  the  good  will  of 
an  established  trade,  the  custom  of  an  inn  and  the  like,  which  will  be  pro- 
tected by  injunction.  The  competition  between  rival  establishments  will 
not  be  restrained,  if  there  be  no  imposture  or  deception.  The  assuming 
of  the  name  and  dress  of  the  plaintiff's  newspaper,  by  the  defendant,  for 
the  purpose  of  imposing  upon  the  public,  and  supplanting  the  plaintiff's 
paper,  is  an  injury  which  will  be  redressed  by  injunction.5 

But  the  party  has  a  property  in  trade-marks,  which  have  been  long 
used  by  him,  aud  which  are  generally  understood  as  designating  his  own 
articles  of  manufacture,  which  will  be  protected  from  invasion  by  a  court 
of  equity,  independent  of  the  fraud  of  the  defendant.*  Much  stronger  is 
the  claim  to  the  protection  of  the  court,  when  the  defendant,  with  full 
knowledge  of  the  plaintiff's  rights,  and  with  the  fraudulent  intention  of 
supplanting  him,  simulates  his  marks,  so  as  to  deceive  the  public.7  And 
it  is  wholly  immaterial  whether  the  simulated  articles  be  or  be  not  of  equal 
goodness  and  value  to  the  original  article,  made  for  sale  by  the  plaintiff. 
Nor  is  it  important  whether  the  plaintiff  was  the  original  inventor  or  pro- 
prietor of  the  article  made  by  him,  and  upon  which  he  now  puts  his  trade- 
mark, nor  whether  the  article  made  and  sold  by  the  defendant,  under  the 

1  Lasala  v.  Holbrook,  4  Paige,  169.  "  Ante,  p.  206. 

*  Radcliff's  Ex'rs  v.  Mayor  of  Brooklyn,        6  Bell  v.  Lock,  8  Paige,  75.     Snowdet> 

4  Comst.  196.  v.  Noah,  Hopk.  347. 

3  Hamilton  v.  N.  T.  and  Harlem  Rail-        6  Millington  v.  Fox,  3  Myl.  &  0.  33S. 
road,    9  Paige,    171.     Drake  v.  Hudson        T  Taylor  v.  Carpenter.  11  Paige.  222 
S.  Railroad,  7  Barb.  508. 


Ch.  6\|  Miscellaneous  C*Jbks  403 

plaintiff's  trade-mark,  is  an  article  of  the  same  quality  or  value.  The  court 
proceeds  upon  the  ground,  that  the  plaintiff  has  a  valuable  interest  in  the 
good  will  of  his  trade  or  business ;  and  that  having  appropriated  to  him- 
self a  particular  label  or  sign,  or  trade-mark,  indicating  to  those  who  wish 
to  give  him  their  patronage,  that  the  article  is  manufactured  or  sold  by 
him.  or  by  his  authority,  or  that  he  carries  on  his  business  at  a  particular 
place,  he  is  entitled  to  protection  against  any  other  person  who  attempts 
to  pirate  upon  the  good  will  of  his  friends  or  customers,  or  the  patrons  oY 
his  trade  or  business,  by  sailing  under  his  flag,  without  his  authority  or 
■consent.1 

The  alienage  of  the  person  whose  trade-marks  are  simulated,  and  his 
residence  in  a  foreign  country,  do  not  affect  his  right  to  their  exclusive 
nse,  when  he  has  introduced  them  here.  And  it  seems  the  commission 
merchant  who  sells  the  spurious  article,  knowing  its  character,  is  equally, 
with  the  maker  of  it,  liable  to  a  suit  to  restrain  the  further  sale  of  it.2 

On  similar  principles,  the  surviving  partner  is  entitled  to  an  injunction 
aguinst  the  executor  of  the  deceased  partner,  to  restrain  him  from  using 
the  name  of  the  partnership  in  carrying  on  his  business.3  Th^  good 
will  of  a  partnership  goes,  it  seems,  on  the  death  of  one  of  the  partners,  to 
the  survivors.' 

The  cases  where  the  aid  of  a  court  of  equity  has  been  invoked  to  re- 
strain the  use  of  trade-marks  are  numerous,  and  the  doctrine  of  the 
cnurtiswell  established.  The  same  principle  applies  here  as  in  other 
cases  in  equity.  The  title  of  the  plaintiff  must  be  clear  and  beyond  dis- 
pute, and  he  must  not  have  been  guilty  of  fraud  upon  the  public  in  the 
thing  represented  by  his  trade-marks.5 

The  right  claimed  to  a  trade-mark  does  not  partake  of  the  nature  and 
character  of  a  patent  or  copyright.6  The  defendant  may  sell  the  same 
goods,  or  manufacture  goods  of  a  like  description.  The  ground  of  relief 
in  equity,  after  the  plaintiff  has  been  shown  or  admitted  to  be  in  the  use 
of  the  particular  trade-marks,  is,  that  the  defendant  had  no  right  to  sell  his 
own  goods  as  the  goods  of  another.  As  was  said  by  Lord  Langdale,  on 
one  occasion,  no  man  has  a  right  to  dress  himself  in  colors,  or  adopt  and 


1  Partridge  v.  Menck,  2  Barb.  Ch.  R.  *  Lewis  v.  Landon,  7  Sim.  421. 

104.     Amoskeag  Manuf.  Co.  v.   Spear,  2  4  Id. 

Sand.  Ch.  II.  550.     Coates  v.  Ilolbrcok,  "  Pidding  v.  How,  8  Sim.  477.     Perry 

id.  586.  v.  Truefit,  6  Beavau,  66. 

3  Coates  v.  Ilolbrook,  2  Sand.  Ch.  R.  'Per  Spencer,   senator,   in  Taylor  ▼. 

586,  003.    Taylor  v.  Carpenter,  id.  603.  Carpenter,  2  Sand.  Ch   R.  017. 
Partridge  v.  Menck,   2  id.  622.     S.  C.  2 
Csrb.  Ch.  R.  104 


104  Of  Injunctions.  [Ch.  0 

bear  symbols,  to  which  he  has  no  peculiar  or  exclusive  right,  and  therebj 
personate  another  person,  for  the  purpose  of  inducing  the  public  to  suppose 
either  that  he  is  that  other  person,  or  that  he  is  connected  with,  and  sell- 
ing the  manufacture  of  such  other  person,  while  he  is  really  selling  his 
own,  It  is  perfectly  manifest,  that  to  do  these  things  is  to  commit  a  fraud, 
and  a  very  gross  fraud.1 

In  New- York,  the  willful  counterfeiting  of  private  stamps  and  labels  of 
the  mechanic  or  manufacturer,  with  intention  to  defraud  either  the  pur- 
chaser or  the  manufacturer,  is  made  a  misdemeanor,  punishable  by  fine 
and  imprisonment;  and  the  same  principle  is  applied  to  the  vendor  of  the 
counterfeited  article,  knowing  it  to  be  such,  as  to  the  counterfeiter  himself.'2 
The  object  of  this  law  is  to  place  under  the  ban  of  legislative  condemna- 
tion a  species  of  fraud,  which  courts  of  civil  jurisdiction  are  not  always 
able  to  suppress. 

The  application  for  an  injunction  should  be  promptly  made,  by  the 
plaintiff,  on  the  discovery  of  the  wrong  committed  by  the  defendant.  If 
he  is  guilty  of  unreasonable  delay,  the  court  will  not  interfere  in  a  sum- 
mary way,  but  perhaps  retain  the  bill,  with  liberty  to  the  plaintiff  to  es- 
tablish his  right  at  law.3  After  a  decree  for  an  injunction  restraining 
the  defendant  from  using  trade-marks,  the  acquiescence  of  the  plaintiff, 
and  his  low  estimation  of  the  value  of  the  right  protected,  will  be  an 
answer  to  a  motion  to  commit  the  defendant  for  a  breach  of  the  injunc- 
tion.4 The  consent  of  the  manufacturer  to  the  use  or  imitation  of  his 
trade-marks  by  another,  may  be  inferred  from  his  knowledge  and  silence  ; 
but  such  consent,  when  purely  gratuitous,  is  merely  a  revocable  license, 
and  is  no  cause  for  refusing  an  injunction.5 

It  may  be  added,  that  if  it  is  not  clear  that  the  simulated  marks  will 
deceive  the  public,  an  injunction  will  not  be  granted  until  the  right  has 
been  established.6 

By  the  constitution  of  this  state,  all  corporations  have  the  right  to  sue, 
and  are  subject  to  be  sued,  in  all  courts,  in  like  cases  as  natural  persons.7 
This  applies  as  well  to  municipal  corporations  as  to  corporations  of  a 
different  description.  While  a  court  of  equity  will  not  interfere  to  con- 
trol the  exercise  of  a  discretionary  power,  where  the  discretion  is  legally 


-  Croft  v.  Day,  7  Beav.  88.  *  Amoskeag  Manuf.  Co.  v.  Spear,    2 
•  Laws  of  1845,  p.  304,  ch.  279.  Sand.  Ch.  R.  599. 

3  Flavel  v.  Harrison,  19  Eng.  L.  &  E.  6  Id. 

15.  7  Const,  of  1846,  art.  7,  §  3. 

-  Uodgers  v.  Nowill,  17  id.  83. 


Ch.  6.]  Miscellaneous  Cases.  405 

and  honestly  exercised,  it  will  interfere  whenever  it  has  grounds  for 
believing  that  its  interference  is  necessary  to  prevent  abuse,  injustice  or  op- 
pression, the  violation  of  a  trust,  or  the  consummation  of  a  fraud.1  "When- 
ever a  corporation  is  about  to  exceed  its  powers,  and  apply  its  funds  or 
credit  to  some  object  beyond  its  authority,  and  whenever  the  purpose  of 
the  corporation,  if  carried  out,  would  constitute  a  breach  of  trust,  a  court 
of  equity  cannot  refuse  to  interfere  and  give  relief  by  an  injunction.2 
The  jurisdiction  thus  rests  upon  the  same  foundation  as  the  jurisdiction 
to  control  the  action  of  individuals,  or  copartnerships,  under  similar  cir- 
cumstances. In  dealing  with  questions  of  property,  a  municipal  corpo- 
ration is  amenable  to  the  judicial  tribunals  of  the  country.  But  the 
performance  of  its  legislative  duties,  wjhen  it  has  a  discretion  to  exercise, 
will  not  be  controlled.  For  its  violation  of  duty  in  that  respect  it  is 
amenable  only  to  its  constituents.3 

In  some  cases  the  court  will,  on  account  of  the  heavy  injury  arising  to 
a  railway  company,  from  having  its  works  stopped,  refrain  from  issuing 
an  injunction,  provided  it  undertakes  to  do  that  which  the  court  decides 
it  is  bound  to  do.  Thus,  where  a  railway  company  was  bound  by  ffs  act 
of  incorporation,  if  it  crossed  a  turnpike  road,  to  raise  or  sink  such  road, 
bo  that  either  the  road  should  pass  over  the  railway,  or  the  railway  pass 
over  the  road  by  means  of  a  bridge  of  stated  height  and  width,  and  the 
company  laid  down  rails  across  a  turnpike  road,  and  used  them  for  carry- 
p  the  works,  by  conveying  materials  thereon  in  wagons  drawn  by 
horses,  the  court  held,  that  before  making  the  railway,  the  company  was 
bound  to  build  a  bridge,  but  having  regard  to  the  long  continued  injury 
which  would  be  inflicted  on  the  company,  by  restraining  it  till  the  bridge 
was  built,  the  court,  instead  of  granting  an  injunction  simpliciter,  put  the 
company  on  terms  to  build  a  proper  bridge,  otherwise  an  injunction  to  be 
granted.4     The  same  principle  was  settled  in  another  case.5 

But  in  a  case  where  a  railway  act  enacted  that  whenever  it  should  be 
found  necessary  to  cut  through,  take,  or  so  much  injure  any  part  of  any 
quay,  wharf,  or  other  communication,  as  to  render  the  same  impassable  or 
inconvenient  for  transporting,  &c.  any  goods,  the  company  should  cause 
another  equally  convenient  quay  or  other  communication  to  be  construct- 
ed ;  an  injunction,  restraining  the  company  from  prosecuting  any  works 
which  rendered  the  plaintiff's  wharf  inconvenient,  was  sustained,  pending 

1  Davis  v.  Mayor  of  N.  Y.  1  Duer,  498.  *  Northern    Bridge  and   Road    Co.   v. 

*  Id.     Agar    v.    Regents'    Canal   Co.  London  and  Southampton  Railway  Co. 

Cooper's  Eq.  Cases,  77.     Milhau  v.  Sharp,  1  Railway  Oases,  iiU-3. 

15  Rarb.  194.  «  Jones  v.  Great  Western  R.  Co.  1  Rail- 

3  Milhau  v.  Sharp,  id.  193.  way  Cases, 


40C»  Of  Injunctions.  "Oh.  & 

an  inquiry  at  law,  whether  the  company,  having  carried  the  railroad  in 
front  of  his  wharf,  so  as  to  cut  off  its  general  access  to  the  water,  and 
having  made  a  jetty  leading  from  the  water  to  the  wharf,  had  complied 
with,  the  terms  of  the  act.  And  the  injunction  was  so  sustained,  notwith- 
standing it  appeared  that  the  further  prosecution  of  the  works  -would  do 
no  greater  amount  of  injury  to  the  plaintiff  than  had  already  been  done, 
and  that  the  only  effect  of  sustaining  the  injunction,  would  be  to  stay  the 
completion  of  the  railway.1 

Persons  who  contribute  to  a  fund  on  condition  that  a  literary  and  theo- 
logical seminary  shall  be  located  'permanently  in  a  specified  place,  and 
which,  in  consideration  thereof,  is  accordingly  located  there  permanently, 
have  a  right  to  apply  to  a  court  of  equity  for  an  injunction  to  prevent  an 
illegal  and  unauthorized  removal  of  the  seminary  to  another  place.2 

A  railway  in  a  city  is  not  per  se  a  nuisance  or  a  purpresture.3  In  the 
city  of  New-York,  the  corporation  has  the  power  and  right  to  authorize 
the  use  of  its  streets  for  a  railway.  The  owners  of  real  estate  in  the  city 
and  its  tax  payers  have  such  an  interest  in  preventing  the  misapplication 
of  the  property  of  the  corporation,  as  to  enable  them  to  institute  a  suit  in 
equity  to  restrain  them  from  making  an  improvident  grant.4 

An  injunction  to  prevent  a  public  nuisance  is  never  granted  on  the  ap- 
plication of  a  private  individual,  unless  the  apprehended  nuisance  would 
be  specially  dangerous  to  himself  or  injurious  to  his  property.5 

An  injunction  to  prevent  a  public  nuisance,  merely  from  apprehended 
dangers  to  the  community,  can  only  be  granted  on  the  application  by  the 
attorney  general  in  behalf  of  the  people.6  And  the  court  will  not, 
on  the  appplication  of  an  individual,  grant  an  injunction  to  the  agent 
of  the  state  prison  and  a  contractor,  to  prevent  the  making  of  contracts 
contrary  to  the  act  which  restricted  the  labor  of  convicts,  except  in  cer- 
tain cases,  to  the  trades  which  they  had  learned  previous  to  their  convic- 
tion.7 The  statute  in  question  is  entirely  prohibitory,  and  does  not  con- 
fer any  individual  right.  It  is  designed  for  the  public  good,  and  any 
infringement  of  it  is  a  wrong  to  the  public,  for  which  the  people  in  thei* 

'  "Bell  v.  Hull  and  Selby  R.  Co.  1  Rail-  road,  11  id.  414.    Hodgkinson  v.  L.  1 

way  Cases,  G16.  Railroad,  4  Edw.  Ch.  R.  411. 

2  HoM-all  v.  The  Madisoa  University,        "  Milhau  v.  Sharp,  15  Barb.  193. 
8  Barb.  174.  5  Smith    v.   Lockwood,  18  Barb.  22?i 

"Milhau  v.  Sharp,  15  Barb.  193,     Plant  per  Strong,  P.  J. 
v.  Long  Island  Railroad  Co.  10  id.  26.        6  Smith  v.  Lockwood,   id.  2C9,  220. 
Chapman  v.  Albany  and  Shenectady  Rail-        T  Laws  of  1847,  p.  614,  §  71. 
road,  id.  SGO.     Adams  v.  S.  and  W.  Rail- 


Ch.  6.J  Miscellaneous  Cases.  40"* 

collective  capacity  alone  are  entitled  to  redress.1  An  injunction  will  not 
be  granted  to  prevent  the  perpetration  of  an  act  prohibited  by  a  public 
statute,  because  it  might  diminish  the  profits  of  a  trade  or  business  pur- 
sued by  the  applicant  in  common  with  others."2 

If  an  ordinance  of  a  municipal  corporation  be  void,  an  injunction  will 
be  granted,  on  a  proper  application,  to  prevent  its  enforcement.3 

Courts  of  equity  sometimes  recognize  rights  which  a  court  of  law  would 
be  inadequate  to  protect.  They  will  not  permit  a  defendant  to  derive  an 
advantage  from  a  breach  of  faith  or  of  contract.  Thus,  where  a  secret 
for  compounding  a  medicine,  not  protected  by  a  patent,  was  imparted  to 
the  defendant  in  breach  of  faith  and  contract  on  the  part  of  the  party  by 
whom  it  was  communicated,  the  court  restrained  the  defendant  by  injunc- 
tion from  using  the  secret.4  So  where  a  defendant  had  been  an  assist- 
ant of  the  plaintiff  in  his  business,  Lord  Eldon,  upon  the  express  ground 
of  breach  of  trust  and  confidence,  granted  an  injunction  to  restrain  the 
defendant  from  using  or  communicating  recipes,  which  he  had  surrepti- 
tiously copied  whilst  in  the  plaintiff's  service.5 

On  this  same  principle  of  breach  of  confidence,  the  court  will  restrain 
the  publication  of  the  lectures  of  a  professor,  against  his  consent,  although 
the  lectures  were  not  written,  but  were  in  whole  or  in  part  oral.6  The 
student  acquires  no  right  to  publish  them. 

The  observations  of  Vice  Chancellor  Wigram,  on  one  occasion,  illus- 
trates the  same  principle.  lie  says,  that  every  clerk  employed  in  a  mer- 
chant's counting  house  is  under  an  implied  contract,  that  he  will  not  make 
public  that  which  he  learns  in  the  execution  of  his  duty  as  clerk.  If 
the  defendant  (speaking  of  the  case  before  him)  has  obtained  copies  of 
books,  it  would  very  probably,  said  his  lordship,  be  by  means  of  some 
clerk  or  agent  of  the  plaintiff;  and  if  he  availed  himself  surreptitiously 
of  the  information,  which  he  could  not  have  had  except  from  a  person 
guilty  of  a  breach  of  contract  in  communicating  it,  he  thought  he  could 
not  be  permitted  to  avail  himself  of  that  breach  of  contract.7 

It  has  been  shown  that  courts  of  equity  interfere  by  injunction,  to  pro- 
tect individuals  in  the  enjoyment  of  a  franchise  created  by  statute.  It 
may  be  added,  that  an  injunction  will  be  granted  to  prevent  the  franchise 

1  Smith  v.  Lockwood,  13  Barb.  217,  5  Yovatt  v.  Winyard,  1  Jac.  &  W.  395. 

per  Strong,  P.  J.  "Williams  v.  Williams,  3  Meriv.  159.  New- 

8  Id.  bery  v.  James,  2  id.  447 

3  Wood  v.  City  of  Brooklyn,  14  Barb.  °  Abernethy  v.  Uutchinson,  3  L.  J.  Ch. 
425.  209.     6  L.  &  E.  29. 

4  Morrison  v.  Moat,  6  Eng.  L.  &  E.  14.  '  Tipping  v.  Clarke,  2  Haro,  S93. 


408  Of  Injunctions.  [Ch.  6. 

of  a  corporation  from  being  destroyed,  as  well  as  to  restrain  a  party  from 
violating  it,  by  attempting  to  participate  in  its  exclusive  privileges.1 

The  foregoing  view  of  the  jurisdiction  of  courts  of  equity,  in  matters 
remediable  by  injunction,  is  far  from  being  perfect.  The  extent  to  which 
the  jurisdiction  may  be  carried  is  not  marked  out  by  any  adjudged  case, 
and  from  the  nature  of  things,  it  must  forever  remain  undefined.  In 
modern  times  the  injunction  has  been  more  extensively  used  than  in  the 
earlier  stages  of  the  law.  It  is  not  only  the  great  preventive  remedy  of 
fraud  and  injustice,  but  is  often  used  to  enforce  the  performance  of  an  ac- 
tive duty.  In  many  of  the  cases  cited,  its  twofold  office  has  been  exem- 
plified. The  process  to  give  possession  of  land  to  the  purchaser,  on  the 
forclosure  of  a  mortgage,  partakes  of  this  character.2 

In  treating  the  subject,  we  have  necessarily  repeated  some  matters 
which  have  already  been  partially  discussed  under  other  heads,  and  an- 
ticipated others,  which  will  be  again  brought  to  our  notice.  It  is  only  by 
viewing  a  principle  in  its  various  bearings,  that  it  can  be  thoroughly  un- 
derstood, and  its  application  to  human  affairs  be  properly  appreciated. 

1  Osborn  v.  U.  S.  Batik,  9  Wheat.  738.         2  Eden  on  Injunc.  425. 


CHAPTER  VII. 


OF    USES    AND    TRUSTS. 


THE  Revised  Statutes  of  New- York  enact,  that  uses  and  trusts, 
except  as  authorized  by  the  act,  are  abolished;  and  that  every  estate 
and  interest  in  lands  shall  be  deemed  a  legal  right,  cognizable  as  such 
in  the  courts  of  law,  except  when  otherwise  provided.  1  It  is  impossi- 
ble to  understand  the  full  force  of  the  legislative  enactments  on  this  sub- 
ject, without  some  general  understanding  of  the  doctrine  of  uses  and 
trusts  in  force  at  the  time  of  the  revision.  "We  shall,  therefore,  before 
treating  of  trusts  in  particular  instruments,  give,  by  way  of  introduction, 
ti  brief  general  view  of  the  doctrine  of  trusts  before  the  adoption  of  the 
Revised  Statutes,  and  of  the  changes  introduced  by  the  revision. 


SECTION  I. 

GENERAL    VIEW    OF    USES     AND     TRUSTS     BEFORE,    AXD     AS     MODIFIED    BY     THE 

REVISED    STATUTES. 

At  common  law,  trusts  were  of  two  kinds ;  the  simple  trust,  and  the 
special  trust.  The  simple  trust,  which  also  was  called  a  use,  was  defined 
to  be,  "  a  confidence  not  issuing  out  of  the  land,  but  as  a  thing  collateral, 
annexed  in  privity  to  the  estate  of  the  land,  and  to  the  person  touching 
the  land,  viz.  that  cestui  que  use  should  take  the  profits,  and  that  the 
terre-tenant  should  execute  estates  according  to  his  direction,  and  plead 
such  pleas  as  he  should  supply  him  with,  at  the  cost  and  expense  of  the 
cestui  que  use"* 

The  feoffee  to  whom  the  estate  was  thus  conveyed  had  the  freehold  or 
(Sole  property  in  him.     And  the  cestui  que  use  had  neither  jus  in  re,  nor 

1  1  R.  S.  727,  §  46.  Abr.  tit.  Uses  and  Trusts,  part  1.     Coko 

*2Fonb.Eq.  B.  2,  cl..   I,  §  2.     Bao.    Litt.  272,  b. 
Eg   Jcii.  52 


410  Of  Uses  and  Trusts  [Ch.  7 

jus  ad  rem,  but  only  a  confidence  or  trust,  for  which  he  had  no  remedy  at 
the  common  law,  but  for  the  breach  of  the  trust  his  remedy  was  in  a  couit 
of  equity.1 

To  every  use  at  common  law  there  were  two  inseparable  incidents — a 
•privity  in  estate,  and  a  confidence  in  the  person.  And  when  either  of 
theso  failed,  the  use  was  suspended  or  destroyed. 

The  equitable  right  of  cestui  que  use  extended  to  all  who  claimed  in 
•privity  under  the  feoffee  ;  that  is,  who  came  to  the  estate  by  contract  with 
him.  But  it  did  not  extend  to  those  who  did  not  take  the  identical  estate 
in  the  land  to  which  the  use  was  attached,  nor  to  one  who  claimed  by  title 
paramount.  And  thus,  a  disseisor  would  take  the  estate  discharged  of 
the  use ;  for  with  regard  to  him,  there  was  neither  privity  of  estate,  or 
confidence  in  the  person  creating  the  use,  and  both  must  concur  in  order 
to  continue  the  use. 

Confidence  in  the  person  was  either  express  or  implied.  There  was  an 
express  confidence  in  the  original  feoffee  to  uses.  If  the  feoffee,  for  a 
good  consideration,  enfeoffed  a  stranger  who  had  no  notice  of  the  use,  the 
latter  took  the  estate  discharged  of  the  use,  and  the  use  was  destroyed. 
In  such  case,  the  feoffee  having  no  notice  of  the  use,  it  could  not  be  said 
that  a  trust  was  reposed  in  him  to  let  the  cestui  que  use  take  the  profits  ; 
but  if  he  had  notice,  a  trust  might  be  said  to  be  reposed  in  him,  since  he 
took  the  estate -Avith  knowledge  of  the  charge.  So,  also,  if  the  feoffment 
had  been  made  without  consideration,  though  the  feoffee  had  no  notice  of 
the  »se,  yet  he  would  nevertheless  have  stood  seised  to  the  use.  The  law 
in  -this  case  implied  notice  of  the  use,  and  consequently  the  trust 
remained.2  In  simple  trusts,  the  trustee  was  merely  passive.  The  cases 
just  considered  are  of  that  character.  In  special  trusts,  an  active  duty 
was  imposed  upon  the  trustee,  for  the  breach  of  which  the  remedy  Avas  in 
equity. 

Both  the  simple  trust  or  use,  and  the  special  trust,  were  applicable  to 
chattels,  real  and  personal,  as  well  as  to  freeholds.  Trusts  of  chattels 
Avere  conducted  upon  the  same  principles  as  trusts  of  freeholds.  The 
right  to  enforce  their  performance  depended  on  privity. 

It  is  quite  obvious  that  this  system  could  readily  be  perverted  into  an 
Instrument  of  fraud.  Lord  Bacon  observes,  that  by  this  course  of  put- 
ting lands  into  use,  there  were  many  inconveniences,  as  the  practice 
which  originated  in  a  reasonable  cause,  (viz.  to  give  men  power  and  lib 

1  2  Fonb.  Eq.  B.  2,  ch.   1,  §  2.     Bac.        "  Bac.  Abr.  tit.  Uses  and  Trusts,  part  1 
Abr.  tit.  Uses  and  Trusts,  part  1.     Coke 
Litt.  272,  b. 


Ch.  7.]  General  View.  411 

erty  to  dispose  of  their  own.)  was  turned  to  deceive  many  of  their  just 
and  reasonable  rights ;  as,  namely,  a  man  that  had  cause  to  sue  for  his 
land,  knew  not  against  whom  to  bring  his  action,  nor  who  was  owner  of 
it.  The  wife  was  defrauded  of  her  thirds,  the  husband  of  being  tenant 
by  the  curtesy,  the  lord  of  his  wardship,  relief,  heriot  and  escheat ;  the 
creditor  of  his  extent  for  debt ;  the  poor  tenant  of  his  lease  for  the  rights 
and  duties  were  given  by  law  from  him  that  was  owner  of  the  land,  and 
none  other,  which  was  now  the  feoffee  in  trust,  and  so  the  old  owner 
which  we  call  the  feoffer,  should  take  the  profits,  and  leave  the  power  to 
dispose  of  the  land  at  his  discretion  to  the  feoffee.  To  remedy  these  and 
and  other  inconveniences,  various  statutes  were  from  time  to  time  enacted, 
during  the  period  of  upwards  of  a  century,  all  tending  to  fix  upon  the 
cestui  que  use  the  obligations  of  an  owner,  until  at  length,  by  the  act 
of  27  Henry  8th,  commonly  called  the  statute  of  uses,  it  was  enacted,  after 
reciting  the  said  grievances,  that  when  any  person  should  be  seised  of 
lands,  &c,  to  the  use,  confidence  or  trust  of  any  other  person  or  body 
politic,  the  person  or  corporation  entitled  to  the  use  in  fee  simple,  fee 
tail  for  life  or  years,  or  otherwise,  should  thenceforth  stand,  or  be  seized 
or  possessed  of  the  lands,  &c,  of  and  in  the  like  estate,  as  they  have  in 
the  use,  trust,  or  confidence  ;  and  that  the  estate  of  the  person  so  seised 
to  uses,  shall  be  deemed  to  be  in  him  or  them  that  have  the  use,  in  such 
quality,  manner,  form  or  condition  as  they  had  before  in  the  use.1  This 
statute  was  re-enacted  in  this  state.2 

Uses,  by  the  operation  of  the  statute,  became  merged  in  the  legal 
estate  ;  but  special  trusts  and  trust  of  chattels  were  not  within  the  pur- 
view of  the  statute ;  the  former,  because  the  use,  as  well  as  the  legal 
interest,  was  in  the  trustee ;  the  latter,  because  a  termor  is  said  to  be 
possessed,  and  not  to  be  seised  of  the  property. 

The  uses  which  were  thus  transferred  into  possession  became  legal  es- 
tates, and  were  governed  by  the  doctrines  of  courts  of  law.  They  be- 
came an  extensive  branch  of  the  law  of  real  property. 

It  was  probably  the  object  of  the  act  to  abolish  uses  altogether.  But 
the  construction  put  upon  it  by  the  judges,  at  an  early  day,  in  a  measure 
defeated  that  intent.  Thus,  in  the  limitation  of  an  estate  to  A.  and  his 
heirs,  to  the  use  of  B.  and  his  heirs,  in  trust  for  D.,  it  was  held  that  B.'s 
estate  was  executed,  and  that  D.  took  nothing.  The  statute  was  held  to 
be  satisfied  by  executing  the  first  use.     Courts  of  equity  took  hold  of  this 

1  2  Fonb.  Eq.  B.  2,  ch.  1,   §  3,  note.        ■  R.  L.  of  1813,  vol.  1,  73.    Act  of 
See  an  abstract  of  these  statutes  in  Eac.    Feb.  20,  1787. 
Abr.  tit.  Uses  and  Trusts. 


412  Of  Uses  and  Trusts.  [Ch.  7. 

construction,  and  said  that  the  intention  must  be  supported.  It  is  plain 
that  B.  was  not  intended  to  take.  His  conscience  was  affected.  To  thia 
the  reason  of  mankind  assented,  and  it  has  stood  on  this  footing  ever  since. 
And  by  this  means  a  statute,  made  upon  great  consideration,  introduced  in 
a  solemn  and  pompous  manner,  by  this  construction  has  had  no  other  ef- 
fect than  to  add  at  most  three  words  to  a  conveyance.1  The  second  use 
in  these  cases,  though  void  under  the  statute,  was  treated  by  courts  of 
equity  as  a  trust,  and  enforced  as  such.  The  remedy  was  in  equity  alone/ 
and  courts  of  law  took  no  cognizance  of  it.  This  was  the  origin  of 
trusts,  as  they  have  been  administered  since  the  statute  of  uses.  A  trust, 
says  Kent,  Ch.  J.,  is  merely  what  a  use  was  before  the  statute  of  uses. 
It  is  an  interest  resting  in  conscience  and  equity,  and  the  same  rules  ap 
ply  to  trusts  in  chancery  which  were  formerly  applied  to  uses.2 

A  use  at  common  law  might  be  created  two  ways :  1st,  by  the  intent 
of  the  parties  upon  the  transmutation  of  possession  ;  or  2d,  by  an  agree- 
ment, upon  an  effectual  consideration,  without  transmutation  of  posses- 
sion. Uses,  which  pass  by  transmutation  of  possession,  were  raised  by  a 
feoffment,  fine  or  recovery,  or  lease  and  release.  Those  raised  without 
transmutation  of  possession  were  raised  either  by  way  of  bargain  and 
sale  enrolled,  in  consideration  of  money,  or  by  way  of  covenant  to  stand 
seised,  in  consideration  of  blood.3  The  intent  upon  transmutation  of  pos- 
session might  be  declared  by  writing  or  by  parol.  Upon  common  law, 
says  Gilbert,4  an  use  might  have  been  raised  by  word  upon  a  conveyance 
that  passed  the  possession  by  some  solemn  act,  as  a  feoffment ;  but  when 
there  was  no  such  act,  then  it  seems  a  deed  declaratory  of  the  uses  was 
necessary,  for  as  a  feoffment  which  passed  the  estate  might  be  made 
at  common  law  by  parol,  so,  by  the  same  reason,  might  the  uses  of  the 
estate  be  declared  by  parol  ;  but  when  a  deed  was  requisite  to  the  pass- 
ing of  the  estate  itself,  it  seems  it  was  necessary  for  the  declaration  of 
the  uses  :  therefore  a  man  could  not  covenant  to  stand  seised  to  an  use 
without  a  deed,  there  being  no  solemn  act.5 

An  agreement  to  raise  an  equity  to  have  the  land,  ought  to  have  an 
effectual  consideration ;  as  money,  pains  and  travail,  marriage  or  natural 
affection.  For  an  use  will  not  arise  by  deed  without  an  actual  considera- 
tion ;  although  a  deed  for  the  solemnity  imports  a  consideration  in  law. 

1  Per  Lord  Hardwicke,  Hopkins  v.  3  Gilbert  on  Uses,  75,  82.  2  Fonb. 
Hopkins,   1  Atk.  591.     Jackson  v.  Car}',    Eq.  B.  2,  ch.  2,  §  1  and  notes. 

i6  J.  R.  302.     Jackson  v.  Fleet,  U  Wend.  4  Gilbert  on  Uses,  270. 

179.  b  Shepherd's  Touchstone,  519.     Gilbert 

2  Fisher  v.  Fields,  10  J.  R.  506.  John-  on  Uses,  270.  2  Fonb.  Eq.  B.  2,  ch.  2, 
son  v.  Fleet,  14  Wend.  180.  per  Nelson.  J.  §  1,  note. 


Ch.  T.J  General  View.  413 

And  there  are  two  sorts  of  good  consideration;  a  consideration  of  nature 
and  blood,  and  a  valuable  consideration.1     But  though  a  consideration  be 
absolutely  requisite  to  the  raising  of  an  use,  upon  a  covenant  to  stand 
seised,  yet  no  consideration  need  be  mentioned  in  the  deed.     But  if  the 
cestui  que  use  stand  in  a  relation  which  affords  of  itself  a  consideration, 
in  use  shall  presently  arise  to  him ;  as  if  a  man  covenant  to  stand  seised 
.0  the  use  of  his  wife,  or  brother,  or  any  of  his  kindred,  this  is  sufficient 
to  raise  an  use  to  them,  without  any  mention  of  a  particular  express  con- 
sideration ;  for  the  love  and  affection  between  them  is  obvious  ;  which 
being  a  consideration  in  itself  sufficient  to  raise  an  use,  the  limiting  of  the* 
use  shall  be  referred  to  such  consideration.2     And  so  with  respect  to  uses 
raised  by  bargain  and  sale,  for  though  they  can  only  be  raised  for  an  ac- 
tual and  valuable  consideration,  yet  the  consideration  need  not  be  neces- 
sarily expressed  in  the  deed,  in  order  to  raise  the  use ;  for  the  bargainee 
may  aver  that  money  or  other  valuable  consideration  was  given  or  paid  ' 
and  if  shown,  the  bargain  and  sale  shall  be  good.3     But  if  a  considera- 
tion be  required  by  the  statute,  as  in  some  instances  under  the  statute 
of  frauds,  to  be  expressed  in  the  instrument,  the  omission  to  specify  it 
therein  will,  it  seems,  be  fatal.     But  if  the  contract  be  not  within  the' stat- 
ute, the  consideration  may  be  shown  by  parol.4 

The  inconveniences  which  were  found  to  arise  from  allowing  parol  decla- 
rations of  trust,  induced  the  legislature,  by  the  act  of  29th  Charles  2d, 
chapter  3,  §  7,  re-enacted  in  this  state  in  1787,5  to  require  all  declarations 
or  creations  of  trust  or  confidences  of  any  lands,  tenements  or  heredita- 
ments, to  be  manifested  and  proved  by  some  writing  signed  by  the  par- 
ty who  is  or  shall  be  by  law  enabled  to  declare  such  trust,  or  by  his 
last  will  in  writing.  The  statute  excepted  trusts  arising  or  resulting 
by  implication  or  construction  of  law,  or  to  be  transferred  or  extinguished 
by  act  or  operation  of  law.  But  it  did  not  extend  to  declarations  of  trusts 
of  personalty,  but  they  were  left  as  at  common  law.6  It  was  sufficient, 
under  the  statute,  if  the  terms  of  the  trust  could  be  ascertained  by  the 
writing.  It  was  not  essential  that  it  should  be  created  by  an  instrument 
in  writing;  if  it  was  evidenced  by  a  writing,  it  was  enough,  and  Avhich 
writing  might  be  subsequent  to  the  commencement  of  the  agreement,7 
the  statute  merely  required  the   declaration  of  the  trust  to  be  mam- 

1  2  Fonb.  Eq.  B.  2,  ch.  2,  §  2.  6  1  R.  L.  79,  §  12. 

*  Gilb.  Uses,  251,  252.    Bedell's  case,        6  2  Fonb.  Eq.  B.  2,  ch.  2,  §  4,  note  x. 
1  ReI»-  w-  7  Forster  v.  Hale,  3  Ves.  61)6.     Stecre 

J  -  i,lst-  672-  v.  Steere,  5  J.  Ch.  R.  1.    Fisher  v.  Fields, 

4  Barnes  v.  Ferine,  15  Barb.  250;  aff.  10  J.  R.  495.    Mulin  v.  Malin,  1   Wend 

on  appeal.  625. 


414  Of  Uses  and  Trusts.  LCh.  7 

Jested  and  proved  by  some  writing  signed  by  the  party,  &c.  Hence 
the  trust  could  be  proved  by  any  subsequent  acknowledgment  of  the 
trustee,  however  informally  or  indirectly  made,  as  by  a  letter  under  his 
hand,1  by  his  answer  in  chancery.2  or  by  a  recital  in  a  deed,3  and  the  like. 

The  New- York  Revised  Statutes  have  made  some  alterations  in  the 
iormer  law.  Thus,  they  enact  that  no  estate  or  interest  in  lands,  other 
than  leases  for  a  term  not  exceeding  one  year,  nor  any  trust  or  power, 
over  or  concerning  lands,  or  in  any  manner  relating  thereto,  shall  hereafter 
be  created,  granted,  assigned,  surrendered  or  declared,  unless  by  act  or 
operation  of  law,  or  by  a  deed  or  conveyance  in  writing,  subscribed  by 
the  party  creating,  granting,  assigning,  surrendering  or  declaring  the 
same,  or  by  his  lawful  agent  thereunto,  authorized  by  writing.4  It  was 
evidently  the  intention  of  the  legislature  to  alter  the  former  law,  and  to 
require  a  writing  in  order  to  create,  &c.  the  trust ;  and  to  give  more 
solemnity  to  the  transaction,  they  required  this  writing  to  be  subscribed 
by  the  party  creating,  &c.  the  trust,  or  by  his  lawful  agent,  &c.  Thi3 
is  plain  from  a  reference  to  the  notes  of  the  revisers,  and  to  the  decis- 
ion of  the  court  of  errors  in  1841,  under  a  corresponding  change  of  phra- 
seology in  the  second  title  of  the  same  chapter.6  The  section  must  then 
be  understood  as  requiring  the  declaration  creating  the  trust  to  be  re- 
duced to  writing  at  the  time  it  was  made,  and  to  be  subscribed  by  the 
party  who  thus  creates  it.  Under  the  former  statute,  which  required  con- 
tracts to  be  signed,  it  had  been  held  that  the  statute  was  satisfied,  if  the 
contract  was  in  writing,  and  the  names  of  the  parties  appeared  therein.7 
The  plain  intent  of  the  revised  act  was  to  change  the  rule  which  formerly 
prevailed,  and  to  substitute  subscribing,  by  which  was  meant  a  literal 
subscribing  of  the  agreement  at  the  end  thereof.  The  chancellor  con- 
sidered that  the  provisions  under  the  section,  relative  to  real  property, 
should  receive  the  same  construction  as  the  section  relative  to  personal 
property  or  contracts.8 

The  statute  also  extends  to  assignments,  so  as  to  embrace  the  transfer 
of  terms  for  years,  or  other  chattel  interests. 

In  New-York,  the  law  with  respect  to  uses  and  trusts  underwent  a  great 
change  at  the  revision  of  the  statutes  in  1830.   The  object  of  the  legislature 

1  Forster  v.  Hale,  3  Yes.  696.  6  2  Pv.  S.  135,  §  2  of  title  2.    Davis  v, 

2  Hampton  v.  Spencer,  2  Vera.  288.    Shields,  26  Wend.  341. 

Cottington  v.  Fletcher,  2  Atk.  155.  7  Merritt  v.  Classon,  12  J.  E.  102 ;  af- 

3  Deg  v.  Deg,  2  P.  "Wins.  412.  firmed  on  error,  14  id.  487.     Davis  v. 

4  2  K.  S.  134,  §  6.  Shields,  26  Wend.  351. 

6  See  Revisers'  notes,  3  P.  S.  655  et  seq.        8  3  R.  S.  584,  Revisers'  notes   Johnson 

v.  Fleet,  14  J.  R.  ISO. 


Ch.  7.]  General  View.  415 

was  to  put  an  end  to  mere  formal,  passive  trusts,  by  converting  them  into  le- 
gal estates  in  the  beneficial  owner,  and  thus  effectuate  the  original  intention 
of  the  statute  of  uses.1  To  accomplish  this  purpose,  uses  and  trusts,  except  as 
authorized  and  modified  by  the  act,  were  abolished,  and  every  estate  and  in- 
terest in  lands  was  declared  to  be  a  legal  right,  cognizable  as  such  in  courts 
of  law,  except  when  otherwise  provided  by  the  act.2  This  general  abolition 
of  uses  was  not  intended  to  effect  estates  then  held  as  uses,  executed  un- 
der any  former  statute,  but  the  same  were  confirmed  as  legal  estates.3 
And  the  section  which  accomplished  the  main  purpose  of  the  legislature 
was  in  these  words  :  "  Every  person,  who  by  virtue  of  any  grant,  assign- 
ment, or  devise,  now  is  or  hereafter  shall  be  entitled  to  the  actual  posses- 
sum  of  lands,  and  the  receipt  of  the  rents  and  profits  thereof,  inlaw  or  in 
equity,  shall  be  deemed  to  have  the  legal  estate  therein,  of  the  same  qual- 
ity and  duration,  and  subject  to  the  same  conditions,  as  his  beneficial 
interest."4 

By  a  subsequent  article,  the  legislature  abolished  the  mode  of  convey- 
ing lands  by  feoffment  with  livery  of  seisin5 — a  mode  of  conveyance, 
previously  lawful,  but  which  was  not  used  in  practice.6  And  they  adopt- 
ed grants  as  the  instrument  for  conveying  a  fee  or  a  freehold  estate.  A 
grant  must  be  subscribed  ami  sealed  by  the  person  from  whom  the  estate 
or  interest  conveyed  is  intended  to  pass,  or  his  lawful  agent.  And  if  not 
arku  iwledged  as  required  by  the  recording  acts,  must  be  attested  by  at 
least  one  witness.  And  if  not  so  attested,  it  shall  not  take  effect,  as 
against  a  purchaser  or  incumbrancer,  until  so  acknowledged.7  The  grant 
effect  only  from  its  delivery.  Deeds  of  bargain  and  sale,  and  of 
lease  and  release,  are  still  permitted  to  be  used,  and  are  deemed  grants.5 

The  operation  of  the  47th  section,  as  was  remarked  by  the  court  in  one 
case,9  accomplishes  all  that  could  have  been  effected  by  the  most  liberal 
construction  claimed  for  the  statute  of  uses.  All  former  trusts  created, 
however  numerous  or  extended  the  scries,  are  as  by  magic  transformed 
into  legal  estates.  A  conveyance  to  A.  in  trust  for  B.,  in  trust  for  C, 
at  once  vests  the  title  in  C.  and  would  vest  the  title  in  the  cestui  que 
trust  last  named,  however  numerous  the  trusts  created.  Whether  the 
legal  title  would  pass  through  each  cestui  que  trust,  or  at  once  pass  from 
the  grantor  or  devisor  to  the  last,  has  not  yet  been  decided. 


1  3  R.  S.  584,  Revisers'  notes.  Johnson        •  Id.  738,  §  136. 
v.  Fleet,  14  J.  R.  180.  e  4  Kent's  Com.  189. 

a  1  It.  S.  727,  §  45.  7  1  R.  S.  738,  §  137. 

a  Id.  %  4rt.  8  Id.  §§  138,  142. 

4  Id.  §  47.  •  Joliuson  v.  Heel,  14  Wend.  18). 


416  Of  Uses     nd  Trusts.  [£h.  7 

It  is  further  enacted,  that  the  ekect  of  the  47th  section  shall  not  divest 
the  estate  of  any  existing  trust,  where  the  title  of  such  trustee  is  not 
merely  nominal,  but  is  connected  with  some  power  of  actual  disposition  or 
management  in  relation  to  the  lands  which  are  the  subject  of  the  trust.1 
That  class  of  trusts  was  left  unexecuted  by  the  statute  of  uses,  and  was 
enforced  only  in  equity.  The  legal  estate  was  in  the  trustee,  because; 
without  such  legal  estate,  the  latter  could  not  fulfill  the  purposes  of  the 
trust.2 

The  benefits  resulting  from  the  abolition  of  uses  and  formal  trusts  could 
not  be  accomplished,  unless  their  future  creation  was  prevented.  This 
object  was  attained  by  the  49th  section,  which  enacts  that  every  disposi- 
tion of  lands,  whether  by  deed  or  devise,  hereafter  made,  shall  be  directly 
to  the  person  in  whom  the  right  to  the  possession  and  profits  shall  be  in 
tended  to  be  invested,  and  not  to  any  other,  to  the  use  of,  or  in  trust  for, 
such  person  ;  and  if  made  to  one  or  more  persons,  to  the  use  of  or  in  trust 
for  another,  no  estate  or  interest,  legal  or  equitable,  shall  vest  in  the 
trustee.3  In  a  case  of  this  kind,  the  title,  by  operation  of  the  47th  sec- 
tion, vests  directly  in  the  party  entitled  to  the  beneficial  interest.4 

The  statute  recognizes  the  existence  of  two  kinds  of  trusts  :  1st,  ex- 
press trusts  ;  and  2d,  implied  trusts,  under  which  are  included  resulting 
trusts.  The  former  are  created  by  deed  or  will,  and  the  latter  arise  in 
general  by  construction  of  law,  upon  the  acts  or  situation  of  the  parties.5 

Before  the  Revised  Statutes,  it  was  well  settled  that  a  resulting  tru;;t 
did  not  come  within  the  statute  of  frauds,  and  that  it  could  be  proved  by 
parol.6  If  A.  purchased  land  with  his  own  money,  but  took  the  deed  in 
the  name  of  B.,  a  trust  resulted  by  operation  of  law  to  A.7  So  if  a  per- 
son purchased  land  with  the  money  of  another,  and  took  a  deed  for  it  in 
his  own  name,  a  trust  resulted  in  favor  of  the  one  to  whom  the  money  be- 
longed.3 In  all  these  cases  parol  evidence  was  admissible  to  establish  the 
trust,  not  only  against  the  face  of  the  deed  itself,  but  in  opposition  to  the 
answer  of  the  trustee  denying  the  trust,  even  after  the  death  of  the  nom- 
inal purchaser.  If  part  only  of  the  consideration  was  paid,  the  trust  re- 
sulted only  ])?'o  tanto.9 

1  1  R.  S.  727,  §  48.  "  Boyd  v.  M'Lean,  supra. 

2  1  Mad.  Ch.  Pr.  356,  357.  8  Jackson  v.  Sternbergh,  supra.     Jack- 

3  1  R.  S.  728,  §  49.  son  v.  Matsdorf,  11  J.  R.  91.     Jackson 

4  Braker  v.  Devereaux,  8  Paige,  518.  v.  Mills,  13  id.  463.     Jackson  v.  Morse, 
6  Johnson  v.  Fields,  14  J.  R.  181.     1  16  id.  197. 

Mad.  Ch.  Pr.  354.     1  R.  S.  728,  §§  50-55.        '  Boyd  v.  M'Lean,  supra.    Bots^ord  v, 

6  Boyd  v.   M"Lean,   1  J.  Ch.  R.   582.    Burr,  2  J.  Ch.  R.  405. 
Jackson  v.  Sternbergh,  1  J.  C.  153. 


Ch.  7.]  General  Atie\v.  417 

But  now,  by  the  Revised  Statutes,  resulting  trusts  are  abolished,  except 
in  favor  of  creditors  of  the  party  paying  the  consideration,  to  the  extent 
that  may  be  necessary  to  satisfy  their  just  demands  ;  and  except  in  cases 
where  the  person  taking  the  absolute  conveyance  in  his  own  name,  does  it 
without  the  consent  or  knowledge  of  the  person  paying  the  consideration, 
or  where  such  alienee,  in  violation  of  some  trust,  shall  have  purchased  the 
lands  so  conveyed  with  moneys  belonging  to  another  person.1 

But  it  is  expressly  enacted,  that  no  implied  or  resulting  trust  shall  be 
alleged  or  established  to  defeat  or  prejudice  the  title  of  a  purchaser,  for  a 
valuable  consideration,  and  without  notice  of  such  trust.2  The  considera- 
tion of  implied  trusts  will  form  the  subject  of  remark  in  a  subsequent 
part  of  this  chapter.3 

Express  trusts  are  allowed  by  the  statute  to  be  created  for  any  or 
either  of  the  following  purposes  :  (1.)  To  sell  lands  for  the  benefit  of  cred- 
itors. (2.)  To  sell,  mortgage  or  lease  lands  for  the  benefit  of  legatees,  or  for 
the  purpose  of  satisfying  any  charge  thereon.  (3.)  To  receive  the  rents  and 
profits  of  lands,  and  apply  them  to  the  use  of  any  person,  during  the  life 
of  such  person,  or  for  any  shorter  term,  subject  to  the  rules  prescribed 
in  the  first  article  of  title  2,  chapter  1,  of  part  2.  (4.)  To  receive  the 
rents  and  profits  of  lands,  and  to  accumulate  the  same,  for  the  purposes 
and  within  the  limits  prescribed  in  the  said  first  article.4  In  addition 
to  the  express  trusts  above  mentioned,  the  act  of  1840s  permits  real 
and  personal  property  to  be  granted  and  conveyed  to  any  incorporated 
college  or  other  literary  incorporated  institution  in  this  state,  to  be  held 
in  trust  for  either  of  the  following  purposes  :  (1.)  To  establish  and  main- 
tain an  observatory  ;  (2.)  To  found  and  maintain  professorships  and  scho- 
larships ;  (3.)  To  provide  and  keep  in  repair  a  place  for  the  burial  of  the 
dead;  and  (4.)  For  any  other  specific  purposes  comprehended  in  the 
general  objects  authorized  by  their  respective  charters.  By  the  same 
statute,  real  and  personal  estate  may  be  granted  and  conveyed  to  the  cor- 
poration of  any  city  or  village  of  this  state,  to  be  held  in  trust  for  any 
purpose  of  education,  or  the  diffusion  of  knowledge,  or  for  the  relief  of  dis- 
tress, or  for  parks,  gardens,  or  other  ornamental  grounds,  or  grounds  for  the 
purposes  of  military  parades  and  exercise,  or  health  and  recreation,  within 
or  near  such  incorporated  city  or  village,  upon  such  conditions  as  may 
be  prescribed  by  the  grantor  or  donor,  and  agreed  to  by  such  corpora- 
tion ;  and  all  real  estate  so  granted  or  conveyed  to  such  corporation  may 

1  1  R.  S.  728,  §§  51,  52,  53.  *  1  B.  S.  V2S,  §  55. 

2  Id.  §  55.  •  Act  of  1840,  cb.  318,  p.  267. 
*  See  post,  §  16  of  Chap.  VII. 

Eq.  Jur.  53 


413  Of  Uses  and  Trusts  [Cli  7, 

be  held  by  the  same,  subject  to  such  conditions  as  may  be  prescribed 
and  agreed  to  as  aforesaid. 

And  by  the  same  act.  real  and  personal  estate  may  be  granted  to 
commissioners  of  common  schools  of  any  town,  and  to  trustees  of  any 
school  district,  in  trust  for  the  benefit  of  the  common  schools  of  such 
town,  or  for  the  benefit  of  the  schools  of  such  district.  The  trusts  au- 
thorized by  the  act  are  allowed  to  continue  for  such  time  as  may  be 
necessary  to  accomplish  the  purposes  for  which  they  may  be  created 
And  by  an  act  the  following  year,  devises  and  bequests  of  real  and  per 
sonal  property  in  trust  were  authorized  for  any  of  the  purposes  for 
which  the  trusts  under  the  act  of  1840  were  authorized ;  and  were  made 
valid  in  like  manner,  as  if  such  property  had  been  granted  and  conveyed 
according  to  the  provisions  of  the  former  act.1  By  force  of  the  forego- 
ing statutes,  trusts  for  the  specified  purposes  may  be  created  either  by 
grant  or  will.  And  by  a  subsequent  act,  the  income  arising  from  any  real 
and  personal  property  granted,  conveyed,  devised,  or  bequeathed  in  trust 
to  any  incorporated  college  or  other  incorporated  literary  institution,  for 
any  of  the  purposes  specified  in  the  said  act  of  1840,  or  for  the  purpose 
of  providing  for  the  support  of  any  teacher  in  any  grammar  school  or  in- 
stitute, may  be  permitted  to  accumulate  till  the  same  shall  amount  to  a 
sum  sufficient,  in  the  opinion  of  the  Regents  of  the  University,  to  carry 
into  effect  either  of  the  purposes  designated  in  said  trust.2 

And  by  an  act  passed  in  1845,  any  receiver  appointed  by  virtue  of  an 
order  or  decree  of  the  court  of  chancery  was  authorized  to  take  and  hoi.' 
real  estate  upon  such  trusts  and  for  such  purposes  as  the  court  might  di 
rect,  subject  to  the  further  order  or  direction  of  the  court,  frc.oi  time  U 
time,  in  relation  to  the  disposition  of  such  real  estate.3 

In  addition  to  the  foregoing,  there  are  several  acts  upholding  trusts,  to 
a  certain  extent,  in  favor  of  the  United  Society  of  the  people  commonly 
called  Shakers,  and  in  favor  of  the  Religious  Society  of  Friends,  and  in 
favor  of  the  community  of  True  Inspiration,  the  consideration  of  which 
do  not  fall  within  the  scope  of  this  treatise.4 

It  has  already  been  said  that  a  purchaser  for  a  valuable  consideration 
with  notice  of  the  trust,  and  a  purchaser  without  consideration  without 
notice,  were,  in  each  case,  held  to  be  trustees  for  the  persons  beneficially 

'  Laws  of  1841,  ch.  261,  p.  265.  Porter  v.  "Williams,  in  Court  ot  Appeals, 

a  Laws  of  1846,  ch.  74,  p.  76.  1853. 

•  Laws  of  1845,  ch.  112,  p.  90.    Wil-        4  2  R.  S.  4th  ed.  138,  139,  *here  these 

•op   v.   Wilson,  1  Barb.  Ch.  Eep.  594.  acts  are  collected. 


Ch.  T.j  General  View.  419 

interested.1  To  discourage  secret  trusts,  which  are  the  common  instru- 
ments of  fraud,  and  to  make  it  the  intent  of  the  parties  that  the  trust 
should  be  expressed  in  the  deed,  the  Revised  Statutes  have  providod  that 
where  the  trust  shall  be  expressed  in  the  instrument  creating  the  estate, 
every  sale,  conveyance  or  other  act  of  the  trustees,  in  contra  ntion  of  the 
trust,  shall  be  absolutely  void.2  Of  course,  in  such  case,  no  estate  passes 
to  the  purchaser.  But  if  the  trust  be  not  expressed  in  the  instrument, 
the  purchase  from  the  trustees  is  governed  by  the  rules  of  the  common 
law.     And  the  purchaser  is  not  chargeable  with  notice,  without  proof. 

The  Revised  Statutes  have  also  provided,  that  no  person,  who  shall  ac- 
tually and  in  good  faith  pay  a  sum  of  money  to  a  trustee,  which  the  lat- 
ter is  authorized  to  receive,  shall  be  responsible  for  the  proper  application 
of  such  money,  according  to  the  trust ;  nor  shall  any  right  or  title  de- 
rived by  him  from  such  trustee,  in  consideration  of  such  payment,  be  im- 
peached or  called  in  question,  in  consequence  of  any  misapplication,  by 
the  trustee,  of  the  moneys  paid.3 

At  common  law  the  trustee  might  devise  the  trust  estate,  but  the  de- 
visee took  subject  to  the  original  trust.4  The  cases  show  that  it  may  be 
devised  by  general  words.  But  if  there  be  other  expressions  or  purposes 
in  the  will  that  indicate  an  intention  to  the  contrary,  the  trust  was  held 
not  to  pass.5  So,  a  trust  estate  descended  in  the  same  manner  as  legal 
estates.*  If  the  trust  was  of  personal  property,  it  passed  to  the  personal 
representatives  of  the  trustee,  subject  to  the  trust.  In  short,  it  followed 
in  general  the  rules  of  law  with  respect  to  the  transmission  of  property.7 

These  rules  have  been  wisely  abrogated  by  the  Revised  Statutes,  with 
rsspect  to  express  trusts,  which  enact,  that  upon  the  death  of  the  sur- 
viving trustee  of  an  express  trust,  the  trust  estate  shall  not  descend  to  his 
heirs,  nor  pass  to  his  personal  representatives ;  but  the  trust,  if  then  un- 
executed, shall  vest  in  the  court  of  chancery,  now  the  supreme  court,  with 
all  the  powers  and  duties  of  the  original  trustee,  and  shall  be  executed  by 
some  person  appointed  for  that  purpose,  under  the  direction  of  the  court.8 

"When  the  purposes  for  which  an  express  trust  shall  have  been  created 
shall  cease,  the  estate  of  the  trustee  also  ceases.9  This  is  merely  declar- 
atory of  the  existing  law.18 

Murray  v.  Ballou,  1  J.  Ch.  R.    575.  6  Id. 

Frost  v.  Beekraan,  id.  301.    Johnson  v.  8  Banks  v.  Sutton,  2  P.  Wms.  713,  736. 

Fleet,  14  Wend.  181.  7  Id. 

*  1  It.  S.  730,  §  65.  •  1  R.  S.  730,  §  68. 
3  Id.  §  66.  •  Id,  §  67. 

*  Marlow  v.  Smith,  2  P.  Wms.  198.  ,0  Parks  v.  Parks,  9  Paige,  107.  Irving 
Braybroke  v.  Inskip,  8  Ves.  417.  v.  Dekav,  id.  523. 


420  Op  Uses  and  Trusts.  [Ch.  7 

The  purpose  of  the  legislature  to  abolish  passive  trusts  would  have 
sometimes  worked  injustice  but  for  some  substituted  provision.  Thus, 
while  it  is  enacted  that  a  devise  of  lands  to  executors  or  other  trus- 
tees, to  be  sold  or  mortgaged,  when  the  trustees  are  not  also  empowered 
to  receive  the  rents  and  profits,  shall  vest  no  estate  in  the  trustees,  it  is 
nevertheless  declared  that  the  trust  shall  be  valid  as  a  power,  and  the 
lands  shall  descend  to  the  heirs,  or  pass  to  the  devisees  of  the  testator, 
subject  to  the  execution  of  the  power.1  At  common  law,  such  devise  car 
ried  the  fee  of  the  estate,  because  the  devisee  could  neither  sell  or  mort- 
gage the  estate  without  being  first  clothed  with  the  title.8  An  absolute 
power  of  disposition  was,  at  common  law,  incompatable  with  an  estate  less 
than  a  fee. 

Where  a  trust  is  created  to  recive  the  rents  and  profits  of  lands,  and 
no  valid  direction  for  accumulation  is  given,  the  surplus  of  such  rents 
and  profits,  beyond  the  sum  that  may  be  necessary  for  the  education  and 
support  of  the  person  for  whose  benefit  the  trust  is  created,  is  liable,  in 
equity,  to  the  claims  of  the  creditors  of  such  person,  in  the  same  man- 
ner as  other  personal 'property,  which  cannot  be  reached  by  an  execution 
at  law.3  And  no  person,  beneficially  interested  in  a  trust  for  the  receipt 
of  the  rents  and  profits  of  land,  can  assign  or  in  any  manner  dispose  of 
such  interest.4  The  effect  of  the  two  last  provisions  is,  when  taken  to- 
gether, that  after  the  creditor  of  the  cestui  que  trust  has  exhausted  his 
remedy  at  law,  by  execution  against  the  property  of  his  debtor,  he  may 
by  a  creditor's  bill  reach,  the  surplus  income  of  such  debtor's  interest  in 
rents  and  profits,  or  income  of  property,  which  the  cestui  que  trust  cannot 
alienate  and  dispose  of  in  anticipation  ;  so  as  to  satisfy  the  judgment 
out  of  that  part  of  the  income  which  may  not  be  necessary,  from  time  to 
time,  for  the  education  and  support  of  the  cestui  que  trust.5 

But  suppose  this  provision  be  made  for  a  married  woman,  it  seems 
that  as  she  cannot  pledge  or  create  a  charge  upon  her  interest  in  such  a 
trust,  in  anticipation  of  the  income  which  may  thereafter  accrue,  or  be- 
come payable  to  her,  and  as  she  cannot  contract  a  personal  liability  upon 
which  a  judgment  can  be  recovered,  her  interest  even  in  the  surplus 
income  which  is  not  necessary  for  her  support,  cannot  be  reached  except 
for  a  debt  contracted  before  marriage.6 

1  1  R.  S.  729,  §  56.     Germond  v.  Jones,        '  1  R.  S.  729,  §  57. 
2  Hill,  570,  573.  4  Id.  730,  §  63. 

-  Heliner  v.  Shoemaker,  22  "Wend.  137.        6  L'Amoureux   v.  Van  Rensselaer,  1 

Jackson  v.  Delancy,  11  J.  R.  36.    S.  C.  Barb.  Ch.  R.  37. 
in  error,  13  id.  537.  Jackson  v.  Robinson,        *  Id. 
15  id.  169.     S.  0.  in  error,  16  id.  537. 


Cn.  T.J  Genenal  View.  421 

Previous  to  the  adoption  of  the  Revised  Statutes,  a  trustee  might  hold 
the  mere  naked  legal  estate  in  real  property,  for  a  feme  covert,  while  the 
whole  equitable  interest  and  estate  therein  was  in  her,  and  subject  to  her 
control.  In  relation  to  such  an  estate,  therefore,  she  was  considerd  as  a 
feme  sole,  and  could  charge  her  equitable  interest  in  the  property  with 
any  debt  she  might  think  proper  to  contract  on  the  credit  thereof,  which 
was  not  inconsistent  with  the  trust,  or  with  the  nature  of  her  interest 
in  the  premises,  and  which  was  authorized  by  the  instrument  or  convey- 
ance creatine:  the  trust.  All  such  mere  formal  trusts,  even  in  favor  of 
femes  covert,  are  now  abolished.  And  in  the  few  trusts  which  are 
authorized  by  the  Revised  Statutes,  the  whole  estate,  both  legal  and  equi- 
table, is  vested  in  the  trustee.  The  statute  also  declares,  in  terms,  that 
the  person  for  whose  benefit  the  trust  is  created,  shall  take  no  estate  or 
interest  in  the  land,  but  may  enforce  the  performance  of  the  trust  in 
equity.' 

Though  the  owner  of  real  or  personal  estates,  may  create  an  interest  in 
the  rents  and  profits,  or  the  income  thereof,  under  the  provisions  of  the  Re- 
vised Statutes,  in  trust  for  the  use  or  benefit  of  a  third  person,  whom  from 
improvidence  or  otherwise  the  donor  does  not  think  proper  to  intrust  with 
the  absolute  disposition  and  control  of  his  beneficial  interest  in  the  trust 
property,  by  anticipation,  yet  neither  law  or  sound  policy  will  allow  an  abso- 
lute and  unconditional  right  to  property  to  be  vested  in  a  person,  which  he 
ni  iv  use  and  dispose  oL  as  he  pleases,  by  anticipation  or  otherwise,  but  in  re- 
lation to  which  prop?  ty  he  may  set  his  creditors  at  defiance,  by  means  of 
a  mere  nominal  trur.t.  Hence  an  annuity  bequeathed  by  the  testator  to 
his  widow  in  lieu  of  /ower,  and  charged  upon  his  real  and  personal  estate 
by  his  will,  is  liable,  Jo  the  claims  of  the  creditors  of  the  widow,  and  may 
be  reached  by  a  Ci  /liter's  bill  against  her.3  Such  annuity  is  in  no  sense 
a  trust,  within  the  meaning  of  the  Revised  Statutes.  It  stands  on  the 
footing  of  an  ordinary  pecuniary  legacy  charged  upon  real  estate.4 

The  trust,  v,hich  is  not  assignable,  and  which  cannot  be  anticipated,  or 
i cached  by  a  creditor's  bill  against  the  cestui  que  trust,  is  a  trust  to  re- 
ceive the  rents  and  profits  of  lands.  But  the  rights  and  interest  of  every 
person  for  whose  benefit  a  trust  for  the  payment  of  a  sum  in  gross  is  cre- 
ated are  assignable,  and  consequently  can  be  reached  by  a  creditor's 
bill  against  the  party  beneficially  interested  in  it.5 


1  L'Amoureux   v.    Van    Rensselaer,    1  3  Id. 

Barb.  Oh.  K.  37.    1  R.  S.  729,  §  60.    Bard  4  Id.  141. 

v.  I  art,  3  Barb.  Ch.  K.  634.  6  1  R.  S.  730,  §  G3.     Degraw  v.  C'la- 

*  Degraw  v.  CJason,  11  Paige,  140.  son,  11  Paige,  130. 


422  Of  Uses  and  Trusts.  [Cli.  1 

Where  an  express  trust  is  created  for  any  purpose  not  enumerated  is 
the  act,  no  estate  vests  in  the  trustees  ;  but  the  trust,  if  directing  or  au- 
thorizing the  performance  of  any  act  which  may  be  lawfully  performed 
under  a  power  is  valid  as  a  power  in  trust,  subject  to  the  provisions  in 
relation  to  such  powers,  contained  in  the  Revised  Statutes.1 

In  one  case  it  was  said,  that  a  general  power  in  trust  is  where  an  au- 
thority is  given  to  the  grantee  to  do  some  act,  in  relation  to  lands,  which 
the  grantor  might  lawfully  perform ;  and  when  he  is  authorized  to  alien- 
ate the  lands  in  fee,  by  means  of  a  conveyance  to  any  alienee  whatever  ; 
and  where  some  persons,  other  than  the  grantees  of  the  power,  are  de- 
signated as  entitled  to  the  proceeds  or  other  benefits  to  result  from  the 
alienation  according  to  the  power.2  Thus,  a  trust  to  sell  lands  and  divide 
the  proceeds  among  the  cestui  que  trusts,  as  beneficial  owners,  and  not  ;is 
creditors,  is  void  as  a  trust,  but  valid  as  a  power  in  trust.3 

In  every  case  where  the  trust  is  valid  as  a  power,  the  lands  to  which 
the  trust  relates  remain  in  or  descend  to  the  persons  otherwise  entitle^ 
subject  to  the  execution  of  the  trust  as  a  power.4  And  the  general  prin- 
ciple is  declared  that  every  express  trust,  valid  as  such,  in  its  creation, 
except  as  is  otherwise  provided,  vests  the  whole  estate  in  the  trustees,  in 
law  and  in  equity,  subject  only  to  the  execution  of  the  trust.  And  the 
beneficiary,  as  already  stated,  takes  no  estate  or  interest  in  the  lands, 
but  may  enforce  the  performance  of  the  trust  in  equity.5 

Where  an  express  trust  is  created,  but  is  not  contained  or  declared  in 
the  conveyance  to  the  trustees,  such  conveyance  is  deemed  absolute,  as 
against  the  subsequent  creditors  of  the  trustees  not  having  notice  of  the 
trust,  and  as  against  purchasers  from  such  trustees,  without  notice,  and  for 
a  valuable  consideration.6  This  enactment  is  merely  declaratory  of  the 
existing  law,  as  has  already  been  shown  in  the  commencement  of  this  chap- 
ter. A  purchaser  with  notice  of  the  trust,  though  upon  full  considera- 
tion, and  a  purchaser  without  consideration,  are  still  bound  by  the  trust 
unless  indeed  the  trust  is  expressed  in  the  instrument  creating  the  estate 
in  which  case,  instead  of  converting  the  purchaser  into  a  trustee,  as  at 
common  law,  we  have  seen  that  the  statute  makes  the  sale  absolutely 
void.7 

The  supreme  court  having  now  the  jurisdiction  formerly  possessed  by 
the  court  of  chancery,  is  clothed  with  power  to  accept  the  resignation  c  f  2 

1  1  R.  S.  729,  §  58.  4  Id.  729,  §  59. 

4  Seldeu  v.  Vermilyea,  1  Barb.  S.  0.  R.  B  Id.  §  CO. 

58.  6  Id.  730,  §  64. 

1  Id.    1  R.  S.  728,  §  55.  7  Id.  §  65,  and  ante. 


Cli.  7.]  General  View.  423 

trustee,  and  discharge  him  from  his  trust,  under  such  regulations  as  shall 
be  established  by  the  court  for  that  purpose,  and  upon  such  terms,  as  the 
rights  and  interests  of  the  persons  interested  in  the  execution  of  the  trust 
may  require.  The  court  also  possesses  the  power  of  removing  a  trustee 
who  has  violated  or  threatened  to  violate  his  trust,  or  who  is  insolvent,  or 
for  apprehended  insolvency,  or  who  for  any  other  cause  shall  be  deemed 
an  unsuitable  person  to  execute  the  trust.  It  possesses  power  also  to  ap- 
point a  new  trustee  in  the  place  of  the  one  who  has  resigned  or  been  re- 
moved. And  when,  in  consequence  of  such  resignation  or  removal,  therf 
shall  be  no  acting  trustee,  the  court  in  its  discretion  may  appoint  new 
trustees,  or  cause  the  trust  to  be  executed  by  one  of  its  officers,  under  its 
direction.'  And  it  is  a  general  principle,  that  the  court  never  permits  a 
valid  trust  to  fail  for  want  of  a  trustee.2 

The  trusts  which  we  have  been  considering,  are  those  which  have  been 
authorized  or  modified  by  the  Revised  Statutes,  and  have  reference  only 
to  real  estates.3  They  have  of  themselves  nothing  to  do  with  personal 
property,  either  directly  or  by  reference.4  The  Revised  Statutes  have 
not  attempted  to  define  the  objects  for  which  express  trusts  of  personal 
estate  may  be  created,  as  they  have  done  in  relation  to  trusts  of  real 
estate.  Such  trusts,  therefore,  may  be  created  for  any  purposes  which 
are  not  illegal.  Indeed  it  would  be  very  difficult,  if  not  impossible,  in 
many  cases,  to  create  and  preserve  future  and  contingent  interests  in  per- 
sonal property,  without  the  intervention  of  a  trustee  ;  although  trustees 
would  not  be  necessary,  under  the  provisions  of  the  Revised  Statutes,  to 
create  and  preserve  such  future  and  contingent  interests  in  lands  or  other 
real  estate.  In  all  other  respects,  however,  except  as  to  the  mere  vesting 
of  the  legal  title  to  the  property  in  the  trustee,  instead  of  the  cestui  que 
trust,  the  conveyance  or  bequest  of  personal  estate  must  be  governed  by 
the  same  rules,  which  are  applicable  to  a  grant  or  a  devise  of  a  similar  in- 
terest in  lands  or  real  property.  Independent  of  the  common  law  prin- 
ciple of  analogy  between  estates  or  interests  in  real  and  personal  property. 
the  statute  creates  such  analogy,  by  restricting  the  power  of  suspending 
the  absolute  ownership,  or  the  right  of  alienation,  within  the  same  limits  ; 
by  confining  the  power  of  accumulating  the  income  of  personal  estate, 
and  the  rents  and  profits  of  real  estate,  to  the  same  objects  and  within  the 
same  bounds  ;  and  finally  declaring,  in  general  terms,  that  in  all  other  re- 
spects, limitations  of  future  or  contingent  interests  in  personal  property 

1  1  R.  S.  730,  §§  69,  70,  71.  s  1  R.  S.  727  to  731. 

a  De  Peyster  v.  Clemlining,  S  Paige,  4  Kane  v.  Gott,  24  Wend.  CGI,  per 
296.     King  v.  Donnelly,  5  id.  48.  Cowen,  J 


424  Of  Uses  and  Trusts.  [Cli.  7 

shall  be  subject  to  the  rules  prescribed  by  the  Revised  Statutes  in  rela 
tion  to  future  interests  in  lands.1 

'  Previous  to  the  Revised  Statutes,  a  trust  for  the  accumulation  of  the 
rents  of  real  estate,  or  of  the  income  of  personal  property  might  be 
created,  to  continue  for  the  same  length  of  time  that  the  power  of  aliena- 
tion or  the  absolute  ownership  of  such  property  might  legally  be  sus- 
pended. And  the  accumulated  fund  might  be  limited  to  any  person  or  class 
of  persons  who  should  be  in  esse  at  the  termination  of  such  trust.2  But  such 
cannot  now  be  created  in  this  state.  For  by  the  provisions  of  the  Re- 
vised Statutes  a  valid  trust  for  the  accumulation  of  tho  rents  and  profits 
of  real  estate,  or  the  interest  or  income  of  personal  property,  can  only 
be  created  for  the  benefit  of  a  minor  or  minors,  who  is  or  are  in  existence 
when  the  accumulation  is  to  commence  ;  and  the  accumulation  must 
cease  with  the  termination  of  such  minority.3 

The  effect  which  an  invalid  trust  will  have  upon  one  authorized  by  law 
and  contained  in  the  same  instrument,  or  which  is  created  at  the  same 
time,  has  often  been  considered,  in  this  state,  since  the  Revised  Statutes. 
If  the  trust  relates  to  personal  property,  the  courts  will  sustain  such 
as  are  legal  and  valid,  if  they  can  be  separated  from  those  which  are  ille- 
gal and  void.4 

The  same  rule  applies,  it  seems,  to  trusts  of  real  property.  In  one  case 
it  was  said,  that  though  some  of  the  objects  for  which  a  trust  is  created, 
or  some  future  interest  limited  upon  the  trust,  are  illegal  or  invalid,  if  any 
of  the  purposes  of  the  trust  are  valid,  the  legal  title  vests  in  the  trustees 
during  the  continuance  of  the  valid  objects  of  the  trust,  unless  the  legal  and 
valid  objects  of  the  trust  are  so  mixed  up  with  those  which  are  illegal  and 
void,  that  it  is  impossible  to  sustain  the  one  without  giving  effect  to  the  other.5 

Where  property  is  bequeathed  in  trust  and  no  trustee  is  appointed,  the 
court,  in  case  of  real  estate,  considers  the  heir  at  law  as  a  trustee,  and 
in  regard  to  personal  estate,  it  considers  the  personal  representatives  as 
the  trustee.  And  when  an  estate  is  devised  in  trust  to  a  body  incapable 
of  taking,  the  trust  will  attach  upon  the  estate,  and  the  heir  become  the 
trustee.6 

1  1  R.  S.  773,  §  2.    Gott  v.  Cook,  7  Bryan  v.  Knickerbacker,  1  Barb.  Cb.  R. 

Paige,   534,   534.    S.   C.  on  appeal,   24  425,  426. 

Wend.  641.    De  Peyster  v.  Clendining,  *  Van  Vecbten  v.   Van  Veghten,   8 

4  y\  305.  Paige,  104.    De  Peyster  v.  Clendining, 

*  Bryan  v.  Knickerbacker,  1  Barb.  Ch.  id.  306.     26  Wend.  21,  S.  C.  affirmed. 

R.  425.     Thellusson  v.  Woodford,  4  Ves.  6  Irving  v.  Dekay,  9  Paige,  523.     S.  G. 

227.     11  id.  112,  S.  C.  on  appeal,  5  Denio,  64G. 

8 1  R.  S.  726,  §§  37,  38.  Id.  773,  ff  3, 4.  6 1  Mad.  Cb.  Pr.  364, 


qjl  7  i  General  View.  125 

As  a  general  rule,  it  may  be  said,  that  when  the  legal  and  equitable 
title  are  both  united  in  the  same  person,  in  the  same  right,  the  equitable 
is  merged  in  the  legal  tiOle,  and  is  extinguished  by  the  unity  of  seisin.' 
There  are  some  exceptions  to  this  rule,  which  are  the  most  frequently 
exemplified  in  mortgage  securities.  If  the  situation  of  the  estate,  or  the 
interest  of  the  mortgagee,  requires  that  the  lien  of  the  legal  estate  should 
be  kept  distinct,  or  if  the  mortgagee,  by  reason  of  infancy,  lunacy,  or 
other  disability,  is  unable  to  make  an  election,  or  if  there  be  a  decisive 
intention  of  the  mortgagee  to  keep  them  separate,  a  court  of  equity  will 
prevent  a  merger,  and  preserve  the  estates  distinct.2  But  this  subject 
will  be  treated  more  fully  under  the  head  of  Mortgages. 

It  was  formerly  held  that  the  trusts,  which  were  the  creatures  of  a 
court  of  equity,  and  were  not  cognizable  in  a  court  of  law,  were  not  with- 
in the  statute  of  limitations.3  The  Revised  Statutes  enacted,  that  when- 
ever there  is  a  concurrent  jurisdiction  in  the  courts  of  common  law  and 
in  courts  of  equity,  the  statute  of  limitations  is  alike  applicable  to  both 
courts.  But  that  provision  was  not  extended  to  cases,  over  the  subject 
matter  of  which  a  court  of  equity  had  a  peculiar  and  exclusive  jurisdic- 
tion, and  which  subject  matter  was  not  cognizable  in  the  courts  of  common 
law.'4  Bills  for  relief,  on  the  ground  of  fraud,  were  limited  to  six  years 
after  the  discovery  of  the  fraud  by  the  aggrieved  party.  And  bills  for 
relief  in  case  of  the  existence  of  a  trust  not  cognizable  by  the  courts  of 
common  law,  and  in  all  other  cases  not  otherwise  provided  for,  were  limited 
to  ten  years  after  the  accruing  of  such  action.5  The  code  fixes  the  limi- 
tation of  six  years  to  an  action  for  relief,  on  the  ground  of  fraud,  in  cases 
which  heretofore  were  solely  cognizable  by  the  court  of  chancery.  ^  The 
cause  of  action  in  such  case  was  not  deemed  to  have  accrued,  until  the 
discovery  by  the  aggrieved  party  of  the  facts  constituting  the  fraud.6 

The  foregoing  general  view  of  the  nature  of  trusts,  as  they  are  affected 
by  the  Revised  Statutes,  is  sufficient  by  way  of  introduction  to  the  sub 
jects  hereinafter  discussed. 

We  have  said  that  trusts  are  either  express  or  implied  ;  express  trusts 
are  also  executed  or  executory.  And  they  may  relate  either  to  real  or 
personal  property. 

Express  trusts  may  be  created  either  by  deed  or  devise.  We  shall, 
in  the  remainder  of  this  chapter,  notice  in  the  next  place  such  express 

•  Nicholson  v.  Halsey,  1  J.  Oh.  R.  417.        3  Kane  v.  Bloodgood,  7  J.  Ch.  B.  114 
a  James  v.  Johnson,  6  id.  417.     James    Murray  v.  Coster,  20  J.  Pw.  57G. 

v.  Mowry,  2  Cowen,  246.  Russell  v.  Aus-       *  2  R.  S.  301,  §§  49,  50. 

tin,  1  Paige,  192.  6  H-  §§  51,  52. 

6  Code,  §  91   sub.  G. 
Ey.  Jut  54 


126  Trusts.  [Ch.  7 

trusts  as  occur  in  deeds,  mortgages,  assignments,  marriage  settlements,  01 
in  executory  contracts,  and  then  notice  sucli  express  trusts  as  are  usually 
contained  in  "wills,  embracing  legacies,  charities,  &c.  We  shall  then 
briefly  notice  the  doctrine  of  implied  trusts,  and  several  other  topics  in- 
cidental to  the  general  subject,  and  conclude  "with  a  brief  account  of  the 
duties  of  a  trustee. 


SECTION  II. 

OF    MORTGAGES,    BOTH    OF    REAL   AND    PERSONAL    PROPERTY  ;    EQUITABLE    MORT 
GAGES;    LIEN  FOR  THE  PURCHASE    MONEY  J    PLEDGES  AND    HYPOTHECATION. 

In  the  early  stages  of  the  English  law  there  were  two  modes  of  pledg- 
ing lands  as  a  security  for  debts ;  the  first  by  the  debtor  to  his  creditor,  to 
be  held  until  the  rents  and  profits  should  equal  the  amount  borrowed, 
when  on  discharge  of  the  debt  the  land  returned  to  the  borrower.  This 
was  called  vivum  vadium,  or  a  living  pledge. 

The  second  mode  of  pledging  land  is  thus  described  by  Littleton,  §  332  ■ 
"  If  a  feoffment  be  made  upon  such  condition,  that  if  the  feoffor  pay  to 
the  feoffee  at  a  certain  day,  &c.  forty  pounds  of  money,  that  then  the  feoffor 
may  re-enter,  &c,  in  this  case  the  feoffee  is  called  tenant  in  mortgage, 
which  is  as  much  to  say  in  French  as  mort  gage,  and  in  Latin  mortuum 
vadium.  And  it  seemeth  that  the  cause  why  it  is  called  mortgage  is,  for 
that  it  is  doubtful  whether  the  feoffor  will  pay  at  the  day  limited  such  sum 
or  not ;  and  if  he  doth  not  pay,  then  the  land  which  is  put  in  pledge  upon 
condition  for  the  payment  of  the  money,  is  taken  from  him  forever,  and 
so  dead  to  him  upon  condition,  &c.  And  if  he  doth  pay  the  money,  then 
the  pledge  is  dead  as  to  the  tenant,  &c."     This  was  called  a  mortgage. 

Littleton  treats  of  the  subject  under  the  head  of  estates  upon  condi 
tion.  And  it  thus  appears,  from  the  foregoing  passage,  that  a  mortgage 
was  created  by  a  conveyance  of  the  lands  from  the  debtor  to  the  creditor, 
upon  condition,  that  if  the  money  was  paid  on  a  certain  day,  the  convey- 
ance should  be  void ;  and  the  debtor  might  enter  and  have  his  former 
estate.  But  if  default  was  made  in  payment  of  the  money  on  the  day  ap- 
pointed, then  the  lands  became  absolutely  vested  in  the  creditor,  freed 
from  tke  condition.  And  all  the  maxims  of  the  common  law,  respecting 
the  breach  of  a  condition,  were  strictly  applied  to  this  kind  of  con- 
veyance. 

The  inconvenience  resulting  from  this  mode  of  pledging  land  was,  thai 


On.    .j  Mortgages  427 

if  the  money  was  not  paid  at  the  day  named  in  the  deed,  the  estate  was 
absolutely  forfeited  ;  and  a  subsequent  tender  of  the  money  would  be  ui> 
available  to  the  debtor,  notwithstanding  the  estate  mortgaged  greatly 
exceeded  in  value  the  sum  borrowed  ' 

The  obvious  injustice  of  this  doctrine  of  the  common  law  courts  in 
duced  the  court  of  chancery  to  interpose,  and  by  an  equitable  and  liberal 
construction,  to  mitigate  the  rigor  of  the  common  law.  The  latter  com 
treated  the  lands  mortgaged  as  a  mere  security  for  the  payment  of  the 
sum  borrowed,  and  the  condition  of  forfeiture  consequent  upon  non-pay- 
ment at  the  day,  in  the  nature  of  a  penalty,  against  which  it  was  the  prov- 
ince of  equity  to  relieve.  The  court  said  that  the  creditor  was,  in  justice 
and  conscience,  entitled  only  to  his  principal,  interest  and  costs,  and  they 
adopted  the  maxim,  that  though  the  condition  was  not  strictly  performed, 
Avhereby  the  estate  was  forfeited  at  law,  yet  if  the  debtor  reimbursed  the 
creditor  within  a  reasonable  time  the  money  borrowed,  with  interest,  he 
should  be  entitled  to  call  on  the  creditor  for  a  reconveyance."1 

This  right  acquired  the  name  of  an  equity  of  redemption,  and  became 
firmly  established  as  a  part  of  the  equitable  jurisdiction  of  the  court  of 
chancery  as  early  as  the  reign  of  James  the  first. 

At  one  time  it  was  conceived  that  if  the  money  loaned  was  not  paid  at 
the  day,  and  the  estate  became  absolute  in  the  feoffee,  that  the  lands  would 
become  chargeable  with  the  dower  of  the  wife  of  the  feoffee,  and  be  liable 
to  forfeiture  or  escheat  by  his  acts,  and  that  the  mortgagor  could  not  be 
relieved  against  those  who  came  in,  in  the  post.  But  equity  soon  set  this 
matter  right,  by  holding  that  the  subsequent  payment  of  the  money,  re- 
invested the  mortgagor  with  his  former  estate  ;  and  thus  the  redemption 
overreached  all  claim  under  the  feoffee,  such  as  dower,  forfeiture  and  es- 
cheat.3 

In  equity,  the  mortgagee  after  forfeiture  was  treated  with  respect  to 
the  surplus,  after  payment  of  the  mortgage  money,  as  the  trustee  for  the 
mortgagor.  And  though,  in  general,  a  trust  is  created  by  the  contract 
of  the  parties,  and  they  only  are  bound  by  it  who  come  in,  in  pfcivity  of 
estate,  or  with  notice,  or  without  consideration,  yet,  a  power  of  redemp- 
tion was  treated  as  an  equitable  right,  inherent  in  the  land,  and  bind- 
ing all  persons  in  the  post  or  otherwise  ;  and  this,  because  it  was  an 
ancient  right,  to  which  the  party  was  entitled  in  equity.4 

It  is  upon  the  principle  that  an  equity  of  redemption  is  a  part  of  the 

1  Litt.   §   332.     Cruise's  Dig.   tit.    15        3  2  Fonb.  Eq.  B.  3,  ch.  1,  §§  1,  2. 
Mortgage.  §§  1  to  5.  4  Id.  §  3. 

2  Cruise's  Dig.  tit.  15,  oh.  1. 


428  Trusts.  [Ch.  7 

law  of  the  land,  that  it  cannot  in  any  way  le  provided  by  agreement,  ir 
case  of  a  mortgage,  that  a  court  of  equity  should  not  give  relief.1  Though 
the  deed  be  absolute  on  its  face,  yet  if  intended  only  as  security,  and 
accompanied  by  an  agreement  in  writing  or  by  parol,  operating  as  a  de- 
feasance, it  will  be  treated  as  a  mortgage,  and  no  agreement  in  it  will  pre- 
vail to  change  its  character.2 

A  mortgage  of  lands,  at  the  present  day,  is  a  conveyance  by  a  debtor 
to  his  creditor,  as  a  pledge  or  security  for  the  repayment  of  a  sum  of 
money  borrowed,  or  for  the  performance  of  some  other  act,  and  to  be  void 
upon  such  payment  or  performance.3  It  may  be  of  an  estate  in  fee,  for 
life,  or  for  years.  It  may  also  be  of  personal  chattels,  but  the  considera 
tion  of  the  latter  will  be  postponed  till  the  conclusion  of  the  present 
subject. 

A  mortgage  of  real  estate,  of  which  we  are  now  treating,  may  be  made 
to  secure  the  payment  of  money,  or  to  do  some  collateral  act.  Thus,  when 
a  deed  in  fee  simple  was  made  with  a  condition,  to  be  void  if  the  grantor 
paid  off  and  discharged  certain  legacies  to  the  legatees  therein  named,  and 
in  the  manner  therein  specified,  and  which  were  a  charge  upon  the  lands 
mortgaged,  it  was  held  to  be  a  mortgage,  and  the  remedy  of  the  mort- 
gagee to  be  in  equity  by  a  bill  of  strict  foreclosure.4  The  assignment  of  a 
land  contract  for  the  security  of  a  debt  due  to  the  assignee,  upon  the  con- 
dition that  if  the  debt  was  paid  at  the  time  stipulated,  the  assignee 
should  reassign  the  contract,  is  in  equity  a  mortgage,  and  the  assignor  has 
a  right  of  redemption.5  So  a  sealed  instrument,  granting  land  for  the 
term  of  one  year,  on  rent,  and  conditioned  to  be  void  on  payment  of  a  cer- 
tain sum,  and  with  a  covenant  on  the  part  of  the  grantor  to  pay  it  at  the 
end  of  the  year,  is  a  mortgage.6  So  a  mortgagee  may  himself  assign  to 
a  third  person  his  mortgage  as  security  for  a  sum  of  money,  or  other 
thing,  and  the  assignment  will  be  treated  as  a  mortgage  which  he  may 
redeem.7  So  an  absolute  assignment  of  a  lease,  accompanied  with  a 
bond,  executed  at  the  same  time,  reciting  the  assignment,  and  stating  it 
to  have  been  made  to  secure  the  payment  of  a  sum  of  money  to  the 


•  2  Fonb.  Eq.  B.  3,  ch.  1,  §  4.     Henry  3  Cruise's  Dig.  tit.  15,  Mortgage,  ch.  1 

v.  Davis,  7  J.  Ch.  E.  40.     Howard  v.  §  11.    Hilliard,  vol.  1,  ch.  29,  §  1. 

Harris,   1  Vern.  191.     James  v.  Oades,  *  Stewart  v.  Hucthins,   13  Wend.  485. 

8  id.  402.  Affirmed,  6  Hill,  143. 

2  Clark  v.  Henry,  2  Cowen,  332.     Day  6  Brockway  v.  Wells,  1  Paige,  017. 

v.  Dunham,  2  J.  Ch.  K.  189.     Peterson  6  Elliot  v.  Pell,  id.  263. 

v.  Clark,  15  id.  205.  7  Slee  v.  Manhattan  Co.  id.  48. 


Ch.  7.J  Mortgages.  429 

assignee,  and  an  agreement  to  reassign  on  payment  of  the  money,  is  a 
mortgage.' 

It  is  not  necessary,  in  order  to  constitute  the  instrument  a  mortgage, 
that  it  should  contain,  or  be  accompanied  by  an  agreement  to  reconvey, 
on  payment,  or  performance  of  the  condition.  If  there  be  evidence  that 
the  land  was  conveyed  for  the  purpose  of  securing  the  repayment  of  a 
sum  of  money,  or  the  performance  of  some  collateral  act,  the  instrument, 
though  absolute  on  its  face,  will  in  a  court  of  equity  be  treated  as  a  mort- 
gage, ami  be  subject  to  all  the  incidents  of  that  estate.  The  defeasance 
need  not  be  contained  in  the  deed,  but  if  it  be  subsequently  executed  by 
the  grantee,  it  is  sufficient.2  Nor  is  it  indispensable  that  the  defeasance 
should  be  by  an  instrument  in  writing.  It  is  well  settled  that  parol  evi- 
dence is  admissible,  in  a  court  of  equity,  to  show  that  a  conveyance  abso- 
lute in  its  terms,  was  intended  as  a  security  for  a  debt.3  If  such  was  the 
object  of  the  instrument,  the  setting  it  up  as  an  absolute  conveyance,  is  a 
fraud  upon  the  grantor,  and  may  afford  evidence  that  the  defeasance  waa 
omitted  by  accident  or  mistake.  And  under  either  head,  equity  can  afford 
relief.  As  between  the  parties  themselves,  or  purchasers  with  notice,  or 
without  consideration,  the  true  character  of  the  transaction  may  bt,  ^*>rwn, 
notwithstanding  the  statute  of  frauds. 

The  doctrine  that  parol  evidence  was  admissible  in  a  court  of  law  to 
turn  an  absolute  deed  into  a  mortgage  was  for  a  time  held  in  this  state, 
but  was  overruled  in  a  case  in  the  court  of  last  resort.4  But  the  rever- 
sal does  not  affect  the  doctrine  with  respect  to  its  admissibility  in  courts 
of  equity,  which  remains  now  the  same  as  heretofore.  Indeed,  the 
ground  on  which  the  doctrine  was  resisted  when  it  was  first  introduced,  was 
not  that  the  evidence  was  under  no  circumstances  admissible,  but  that  it 
was  not  admissible  in  a  court  of  law,  and  could  only  be  received  in  equity 
where  the  rights  of  all  parties  could  be  properly  guarded.5 

1  Jackson  v.  Green,  4  J.  E.  186.  Russell,  3  Barb.  Ch.  R.  325.    James  v. 

s  Dey   v.   Dunham,  2  J.  Ch.  E.  182.  Johnson,  G  J.  Ch.  R.  417.     3  Atk.  389. 

S.  C.  on  appeal  affirmed,  15  J.  R.  555.  2  id.  99. 

8  Strong  v.  Trustees  of  Mitchell,  4  J.  4  Webb  v.  Rice,  6  Hill,  219;  reversing 

Ch.  R.   1G7.    Marks  v.  Pell,  1  id.   594.  the  decision  S.  C,  1  Ilill,  600.    Roach  v, 

Clark  v.  Henry,  2  Cowen,  324.    Dey  v.  Cosine,  9  Wend.  227.    Walton  v.  Cranly 

Dunham,  2  J.  Ch.  R  189.     Peterson  v.  14  id.  63.    Swart  v.  Service,  21  Wend 

Clark,  15  J.  R.  205.  Gilchrist  v.  Cunning-  36. 

ham,  8  Wend.  641    Yarborough  v.Newell,  B  See  dissenting  opinion  of  Bronson  in 

10  Yerg.  376.   Whittick  v.  Kane,  1  Paige,  Swart  v.  Service,  supra,  and  in  Webb  v. 

202.  Slee  v.  Manhattan  Co.  id.  48.    Van  Rice,  1  Hil!,  608. 
Borcn   v.  Obustead.  5  id.  9.     Lauding  v. 


\ 


130  Trusts.  [Cli.  T. 

A  mortgage  may  contain  a  covenant  from  the  mortgagor  for  himself 
his  heirs,  executors  and  administrators,  to  repay  the  money  borrowed,  with 
interest.  In  this  state  it  is  not  the  practice  to  insert  a  covenant  in  the 
mortgage  for  repayment,  and  the  Revised  Statutes  have  enacted  that  no 
mortgage  shall  be  construed  as  implying  a  covenant  for  the  payment  of  the 
sum  intended  to  be  secured ;  and  that  where  there  shall  be  no  express 
covenant  for  such  payment  contained  in  the  mortgage,  and  no  bond  or 
other  separate  instrument  to  secure  such  payment  shall  have  been  given, 
the  remedies  of  the  mortgage  shall  be  confined  to  the  lands  mentioned  in 
the  mortgage.1  They  have  also  abolished  all  implied  covenants  in  any 
conveyance  of  real  estate,  whether  such  conveyance  contains  special  cov- 
enants or  not.2  The  general  practice  is  to  take  a  separate  bond,  or  prom- 
issory note  for  the  payment  of  the  sum  intended  to  be  secured  by  the 
mortgage.  And  the  mortgage  usually  contains  a  power  of  sale  author- 
izing the  mortgagee  or  his  assigns,  or  personal  representatives,  or  on 
non-performance  of  the  condition  of  the  mortgage,  to  sell  the  premises 
at  vendue  to  the  highest  bidder,  and  to  convey  the  estate  to  the  purchaser, 
rendering  the  surplus  money,  after  paying  the  debt  and  costs,  to  the  mort- 
gagor, or  his  assigns  or  personal  representatives.  The  object  of  the 
power  of  sale  is  to  enable  the  mortgagee  to  foreclose  the  mortgage  at  law, 
by  advertisement,  and  without  an  action,  the  proceedings  to  do  Avhich 
are  pointed  out  in  the  statute.3  But  an  account  of  this  proceeding  does 
not  belong  to  the  present  treatise.  An  instrument  conveying  lands  by 
mortgage  is  no  less  a  mortgage  without  a  power  of  sale  than  with  one. 
If  it  contains  no  power  of  sale,  and  no  covenant  to  pay,  and  is  accompa- 
nied by  no  obligation  to  pay,  the  only  remedy  of  the  mortgagee  is  in 
equity,  and  is  confined  to  the  lands  mentioned  in  the  mortgage. 

If  a  deed,  absolute  on  its  face,  be  intended  as  a  mortgage,  it  should  be 
recorded  as  a  mortgage,  in  order  to  protect  the  land  against  the  title  of 
a  subsequent  bona  fide  purchaser.  Recording  it  as  a  deed,  is  in  such  a 
case  of  no  avail,  for  the  purchaser  is  not  bound  to  search  the  record  of 
deeds,  in  order  to  be  protected  against  the  operation  of  a  mortgage. 
phird  persons  have  a  right  to  knoAv  from  the  record,  or  from  some  other 
source,  the  object  and  intent  of  the  conveyance.4  Independent  of  the 
recording  act,  conveyances  would  take  effect  according  to  their  priority. 
The  recording  act  renders  void  an  unrecorded  conveyance  as  against  any 

1  1  R.  S.  738,  §  139.  4  Dey  v.  Dunham,  2  J.  Ch.  R.  132 ; 

*  Id.  §  140.  S.  C.  on  appeal,  15  J.  R.  569,  570.     1  R. 

2  R.  S.  545  ;  see  2  R.  S.  777,  4th  ed.    S.  756. 
where  the  various  amendatory  acts  are 
collected. 


Ch.  7.J  Mortgages.  431 

subsequent  purchaser,  in  good  faith,  and  for  a  valuable  consideration,  of 
the  same  real  estate,  or  of  any  portion  thereof,  whose  conveyance  shall 
be  first  duly  recorded.1  And  the  statute  expressly  provides,  that  every 
deed,  conveying  real  estate,  which,  by  any  other  instrument  in  writing, 
shall  appear  to  have  been  intended  only  as  a  security,  in  the  nature  of  a 
mortgage,  though  it  be  an  absolute  conveyance  in  terms,  shall  be  con- 
sidered as  a  mortgage ;  and  the  person  for  whose  benefit  such  deed  shall 
be  made,  shall  not  derive  any  advantage  from  the  recording  thereof, 
unless  every  writing,  operating  as  a  defeasance  of  the  same,  or  explana- 
tory of  its  being  designed  to  have  the  effect  only  of  a  mortgage  or  con- 
ditional deed,  be  also  recorded  therewith,  and  at  the  same  time.2  But 
if  the  subsequent  purchaser  have  notice  of  an  unrecorded  mortgage,  he 
is  not  deemed  a  bona  fide  purchaser,  within  the  meaning  of  the  recording 
laws,  and  as  to  him  the  unrecorded  mortgage  will  take  effect  according 
to  the  priority  of  date.  Conveyances  though  unrecorded,  are  valid  between 
the  parties.3 

It  is  not  enough  that  an  absolute  deed  intended  as  a  mortgage  is 
recorded  in  the  book  of  deeds.  It  is  well  settled,  that  in  order  to  protect 
the  mortgagee,  it  must  be  recorded  in  the  book  of  mortgages." 

When  an  absolute  deed  is  intended  only  as  a  mortgage,  a  subsequent 
purchaser  with  notice,  stands  in  the  place  of  the  equitable  mortgagee.5 

While  a  party  who  takes  a  mortgage  subsequent  to  an  unrecorded 
mortgage  with  notice,  is  postponed  in  the  same  manner  as  if  the  first 
had  been  recorded,  his  assignee,  without  notice  and  for  valuable  con- 
sideration, takes  discharged  of  the  previous  mortgage.6 

With  respect  to  judgment  creditors  who  seek  either  to  set  aside  a 
deed  as  fraudulent,  or,  who  claim  that,  though  absolute  in  its  terms,  it 
was  intended  only  as  a  security  or  mortgage,  and  thus  seek  to  redeem, 
they  have  a  right,  even  in  a  court  of  law,  and  much  more  in  a  court 
of  equity,  to  show,  by  parol  evidence,  the  character  of  the  transac- 
tion. Creditors  who  are  in  a  condition  to  impeach  the  sale  may  show- 
any  fact,  either  consistent  or  inconsistent  with  the  deed,  tending  to 
prove  that  it  was  without  consideration,  that  it  was  made  with  intent 

1  1  R.  S.  756,  §  1.  Grimstone  v.  Carter,  3  id.  421. 

*  Id  •  White  v.  Moore,  1  Paige,  651.     Grim- 

"  Dunham  v.  Dey,  15  J.  R.  509.     Mills  stone  v.    Carter,    8  id.   321.     Brown  v. 

v.  Gomstock,  5  J.  Ch.  R.  214.    James  v.  Dean,  8  Wend.  208. 

Johnson,  0  id.  417.   Jackson  v.  Van  Val-  6  Williams  v.  Thorn,  11  Paige,  459. 

kenburgh,  8  Cow.  200.  Whittick  v.  KaDe,  •  Jackson  v.  Van  Valkenhargh,  8  Cow 

1  Paige,  202.     White  v.  Moore,  id.  551.  en,  260. 


432  Trusts.  f.Ch.  7 

to  defraud  creditors,  that  though  absolute  in  terms,  it  -was  in  truth  a 
mortgage.1 

If  a  deed  of  lands  be  given,  absolute  on  its  face,  and  a  contemporane- 
ous covenant  executed  between  the  parties,  expressing  the  object  of  the 
conveyance;  and  importing  a  qualification  of  the  title  designed  to  be 
conveyed,  both  should  be  regarded  as  one  instrument.2  At  law,  it  has 
been  doubted  whether  an  instrument  containing  no  reservation  of  a  right 
to  redeem  can  be  treated  as  a  technical  mortgage.3  In  an  earlier  case, 
Savage,  chief  justice,  did  not  consider  these  words  as  indispensable,  and 
he  held  that  the  intent  to  create  a  mortgage  might  be  gathered  from 
other  expressions  in  the  deed,  indicating  that  the  grantor  did  not  part 
with  all  his  interest,  and  that  the  overplus,  beyond  paying  off  certain 
securities,  should  be  paid  back  to  him.4  In  a  court  of  equity,  it  has 
been  seen  that  the  interest,  if  not  apparent  on  the  deed,  may  be  shown 
by  parol.  That  court  looks  at  the  real  object  and  intention  of  the  con- 
veyances ;  and  when  the  grantor  applies  to  redeem,  upon  the  allegation 
that  the  deed  was  intended  as  a  security  fur  a  debt,  that  court  treats  it 
precisely  as  it  would  an  ordinary  mortgage  ;  provided  the  truth  of  the 
allegation  is  made  out  by  the  evidence.  So  too  the  grantee,  in  such  a 
deed,  may  treat  it  as  a  mortgage,  and,  acknowledging  it  to  be  such,  may 
apply  to  a  court  of  equity  to  foreclose  the  equity  of  redemption,  which 
will  be  decreed  in  like  manner  as  if  an  unexceptionable  defeasance  were 
attached  to  the  deed.5 

There  are  some  cases,  partaking  of  the  character  of  a  mortgage, 
which  may  be  upheld  as  trusts  and  enforced  as  such  by  a  court  of  equity. 
Thus,  where  a  deed  of  lands  was  executed,  and  a  covenant  made  between 
the  parties  at  the  same  time,  declaring  that  the  grantee  should  sell  the 
lands  to  pay  certain  of  the  grantor's  debts,  and  return  to  him  the  sur- 
plus, but  containing  no  reservation  of  a  right  to  redeem,  the  transaction 
was  regarded  by  Bronson,  J.,  as  constituting  a  conveyance  in  trust,  and 
not  a  mortgage.6  According  to  Palmer  v.  Gurnsey,  (supra,)  this  would 
be  treated  as  a  mortgage.  But  the  later  case  of  Baker  v.  Thrasher 
(supra)  disapproves  the  doctrine  of  Palmer  v.  Gurnsey,  and  perhaps 
overrules  it.  But  it  does  not  affect  the  doctrine  of  courts  of  equity 
upon  this  subject. 

1  Per  Savage,  Ch.  J.,  Jackson  v.  Myers,  4  Palmer  v.   Gurnsey,    7  "Wend.    248 

11  Wend.  336,  337.     Henry  v.  Davis,  7  But  see  Baker  v.  Thrasher,  4  Demo,  495 

J.  Ch.  K.  40.     1  Phil.  Ev.  551.     0.  &  H.  contra,  per  Bronson,  J. 

Notes,  1448.  6  Hughs  v.  Edwards,  9  "Wheat.  495. 

*  Cooper  v.  "Whitney,  3  Hill,  96.  6  Cooper  v.   "Whitney,  3  Hill,  96.     1 

*  Id.  Pv.  S.  728,  §  55. 


Oh.  J.]  Mortgages.  433 

In  this  state,  whether  the  mortgage  be  of  lands  in  fee,  for  life,  or  years, 
no  reconveyance  is  necessary  on  payment  of  the  mortgage  debt,'  whether 
it  be  paid  before  or  after  it  became  due,  and  whether  the  mortgagor  re- 
mained in  possession  or  not.2  This  is  believed  to  be  the  general  doc 
trine  in  this  country,  when  there  are  no  statute  regulations  on  the  sub- 
ject. The  New-York  Revised  Statutes  have  provided  for  the  discharge 
of  registered  or  recorded  mortgages,  on  the  presenting  to  the  clerk,  in 
whose  office  the  instrument  is  recorded,  a  certificate  signed  by  the  mort- 
gagee,  his  personal  representatives  or  assigns,  acknowledged,  or  proved 
and  certified  as  required  by  the  act,  specifying  that  such  mortgage  has 
been  paid,  or  otherwise  satisfied  or  discharged.3  The  statute  does  not 
require  any  reconveyance,  but  treats  the  mortgage  as  extinguished  bv 
payment. 

In  this  state,  it  lias  been  held,  from  an  early  day,  that  the  mortgagor 
is  to  be  regarded  as  the  owner  of  the  land,  and  the  mortgage  treated  as 
a  mere  incumbrance.  The  land  mortgaged  descends  to  his  heirs  as  real 
estate.  It  is  devisable  as  such.  It  is  subject  to  the  dower  of  the  widow, 
md  the  curtesy  of  the  husband.  And  it  may  be  sold  on  execution  against 
the  mortgagor.4 

It  is,  for  these  reasons,  that  the  creditor  in  general  requires  that  the 
wife  should  join  in  the  mortgage  with  her  husband,  so  as  to  pass  her  con 
tingent  right  of  dower.  This  would  be  unnecessary  in  England,  where 
dower  is  not  given  of  an  equityof  redemption.  (See  2  Sch.  &  Lefr.  388.) 
But  if  the  mortgaged  premises  be  worth  more  than  enough  to  satisfy 
and  discharge  the  debt  secured  thereby,  the  widow  is,  in  equity,  entitled 
to  her  dower  in  the  surplus.5 

A  mortgagee,  whether  before  or  after  forfeiture,  has  no  interest  in  the 
land  which  can  be  sold  on  execution.  Before  entry  under  his  mortgage, 
he  is  not  bound,  as  an  assignee  of  the  mortgagor,  by  a  covenant  running 
with  the  land,  and  cannot,  under  the  Revised  Statutes,  maintain  eject- 
ment before  foreclosure.6  The  mortgagor  is,  for  every  substantial  pur- 
pose, the  real  owner  of  the  land,  and  the  mortgagee  has  merely  a  lien  upon 
it.7     The  widow  of  the  mortgagee  is  not  entitled  to  dower,  before  fore- 

1  Jackson  v.  Davis,  IS  J.  R.  7.  ton  v.  Nanny,   8  Barb.  C18.     Coles  v. 

2  Jackson  v.  Stackboven,  1  Cowen,  122.    Coles,  15  J.  R.  319. 

Aruot  v.  Port,  C  Dill,   G5.     Jackson   v.        s  Titus  v.  Neilson,  5  J.  Cb.  R.  452. 
Crafts,  18  J.  R.  110.  °  Aymar  v.  Bill.  5  id.  570.     Morris  v. 

'  1  R.  S.  761,  §  28.  Mowatt,  2  Paige,  586.    Jackson  v.  Wil- 

4  Waters  v.  Stewart  1  Oai.  C.  in  Error,  lard,  4  J.  R.  10. 
47.     Hitchcock    v.    Harrington,  6  J.  R.        7  Astor  v.  Miller,  2  Paige,  68.     Astol 

200,     Collins  v.  To  ry,  7  id.  278.     Den-  v.  Hoyt,  5  Wend.  602. 
Kq.  Jl'R.                                         53 


434  Trusts.  [Ch.  7 

closui  e,  for  the  reason  that  until  then  the  husband  is  not  seised,  and  with- 
out seisin,  there  is  no  dower.1 

There  is  one  exception  to  the  rule  that  the  widow  of  the  mortgagor  is 
entitled  to  dower  ;  and  that  occurs  when  the  seisin  is  instantaneous  only, 
and  immediately  passes  back  to  the  grantor.  Thus,  where  a  deed  is  giv- 
en by  the  vendor  of  an  estate,  who  takes  back  a  mortgage  to  secure  the 
purchase  money,  at  the  same  time  he  executes  the  deed,  the  deed  and  the 
mortgage  are  to  be  considered  as  parts  of  the  same  contract,  as  taking 
effect  at  the  same  instant,  and  as  constituting  but  one  act ;  in  the  same 
manner  as  a  deed  of  defeasance  forms,  with  the  principal  deed  to  which 
it  refers,  but  one  contract,  although  it  be  by  a  distinct  and  separate  in- 
strument.2 

With  respect  to  growing  crops,  raised  annually  by  cultivation  on  the 
mortgaged  premises,  the  title  to  these,  on  foreclosure,  pass  to  the  pur- 
chaser on  the  mortgage  sale.  The  crop  as  well  as  the  land  is  a  security  for 
the  mortgage  debt,  and  on  the  sale  of  the  land  passes  to  the  purchaser.3 

A  mortgagor  may  cut  timber  on  the  mortgaged  premises,  if  he  does 
not  unreasonably  weaken  the  security  of  the  mortgagee,  and  the  latter,  in 
such  case,  has  no  lien  on  the  timber  cut.4 

If  a  mortgage  be  given  as  a  security  to  cover  unliquidated  damages, 
the  only  remedy  of  the  mortgagee,  it  would  seem,  is,  on  breach  of  the  con- 
dition, in  a  court  of  equity.  Such  case  is  not  supposed  to  be  adapted  to 
the  statute  foreclosure  at  law,  which  contemplates  only  mortgages  con- 
ditioned for  the  payment  of  money.5 

The  English  doctrine  of  tacking,  was  considered  in  a  previous  chapter, 
and  was  shown  to  have  been  abrogated  by  our  recording  laws.6 

If  there  be  several  equitable  interests  affecting  the  same  estate,  they 
will,  if  the  equities  are  otherwise  equal,  attach  upon  it,  according  to  the 
periods  at  which  they  commenced  ;  for  it  is  a  maxim  of  equity,  as  well  as 
of  law,  that  qui  prior  est  in  tempore  potior  est  jure.1 

It  is  said  to  have  been  the  old  rule  in  the  English  chancery,  that  if  a 
person  took  a  mortgage,  and  voluntarily  left  the  title  deeds  with  the 
mortgagor,  he  was  to  be  postponed  to  a  subsequent  mortgagee  without 
notice,  and  who  was  in  possession  of  the  title  deeds.     The  reason  of  the 

1  1  R.  S.  740,§  1.  *  Ensign  v.  Colburn,  11  Paige,  503. 

2  Stow  v.  Tifft,  15  id.  158,  463.  Hoi-  5  Ferguson  v.  Kimball,  3  Barb.  Cli.  R 
brook  v.  Finney,  4  Mass.  R.  569.  619.  Ferguson  v.  Ferguson,  2  Comst.  360 

3  Sbepberd  v.  Pbilbrick,  2  Denio,  174.  2  R.  S.  545. 

Lane  v.  King,  8  "Wend.  584.     Aldricb  v.        6  Ante,  pp.  255,  256. 

Reynolds,  1  Barb.  Cb.  R.  613.     Gillet  v.        7  Per  Kent,  Ch.,  in  Perry  v.  Mut.  Ina 

Baleolm,  6  Barb.  370.  Co.  2  J.  t  h.  E.  60S. 


Ch.  7.]  Mortgages.  435 

rule  was,  that  by  leaving  the  title  deeds,  he  enabled  the  mortgagor  to  im- 
pose upon  others  who  had  no  registry  to  resort  to.  But  it  is  now  the 
settled  English  doctrine,  that  the  mere  circumstance  of  leaving  the  title 
deeds  with  the  mortgagor  is  not,  of  itself,  sufficient  to  postpone  the  first 
mortgagee,  and  to  give  the  preference  to  a  second  mortgagee,  who  takes  tho 
title  deeds  with  his  mortgage,  and  without  notice  of  the  prior  incum- 
brance. There  must  be  fraud,  or  gross  negligence,  which  amounts  to  it, 
to  defeat  the  prior  mortgage.1 

With  us  the  recording  of  the  mortgage  is  a  beneficial  substitute  for  the 
deposit  of  the  title  deeds,  and  gives  a  more  effectual  security  to  subsequent 
mortgagees.  The  recording  of  the  mortgage  is  notice.  Leaving  the  title 
deeds  with  the  mortgagor  works  no  prejudice  to  the  first  mortgage,  pro- 
vided it  is  duly  recorded.2 

As  between  two  unrecorded  mortgages,  they  are  to  be  paid  according 
to  their  order  of  priority,3  unless  the  first  has  been  guilty  of  some  fraud, 
other  than  leaving  the  title  deeds  in  the  possession  of  the  mortgagor. 
That  alone  is  not  enough.  A  subsequent  bona  fide  purchaser,  without 
notice  of  an  unrecorded  mortgage,  is  protected  by  the  statute  against  the 
mortgage.4  The  statute  here  speaks  of  purchasers,  in  the  popular  sense, 
as  those  who  take  an  absolute  estate  in  fee.  A  mortgage  is  in  one  sense 
a  purchase.  But  there  is  neither  reason  or  necessity  for  treating  the 
mortgagee  as  a  purchaser,  within  the  meaning  of  the  recording  law,  be- 
cause by  putting  his  mortgage  on  record  he  will  gain  priority  over  a  pre- 
vious unrecorded  mortgage,  of  which  he  had  no  notice  at  the  time  he  took 
h:.s  mortgage.5 

But  the  registry,  or  record  of  a  mortgage,  is  only  notice  to  the  extent 
of  the  sum  specified  therein.6  Thus,  where  a  mortgage  was  given  to  se- 
cure three  thousand  dollars,  but  by  the  mistake  of  the  clerk  was  regis- 
tered for  three  hundred  dollars,  it  was  held  to  be  notice  to  subsequent 
bona  fide  purchasers  to  the  extent  only  of  the  sum  expressed  in  the 
registry.7  On  the  same  principle  a  prior  mortgagee  is  not  allowed  to 
enlarge  his  demand  beyond  what  appears  upon  the  record,  in  consequence 
of  a  separate  agreement  between  him  and  the  mortgagor,  to  the  prejudice 
of  a  second  mortgagee,  who  had  no  notice  or  information,  at  the  time  he 

1  Evans    v.   Bicknell,  6  id.  183,  190.  6  Berry  v.  Mut.  Ins.  Co.   2  J.  Oh.    II 

Barnett  v.  Weston,  12  Ves.  130.    Berry  611. 

v.  Mut.  Ins.  Co.  2  J.  Ch.  It.  609,  610.  "  Beekraan  v.  Frost,  1  id.  283.     S.  0 

3  Id.  18  J.  R.  544,  564. 

'  Per  Savage,  Ch.  J.  in  James  v.  Mowry,  *  Id. 
2  Cowen,  248. 

•  1  R.  S.  756,  §  1. 


436  Trusts.  [Ch.  7. 

took  his  mortgage,  of  the  agreement  between  the  mortgagor  and  the  first 
mortgagee,  by  which  the  latter  claimed  interest,  when  the  bond  and 
mortgage  were,  on  the  face  of  them,  without  interest.1 

"We  have  hitherto  treated  of  mortgages  for  existing  debts  or  liabili 
ties,  or  for  the  performance  of  covenants,  and  explained  some  of  the  gen 
eral  incidents  of  this  security.  It  is  obvious  that  occasions  may  arise,  in 
the  vicissitudes  of  business,  which  will  render  it  expedient  to  obtain  the 
security  of  a  mortgage  or  judgment,  for  advances  thereafter  to  be  made, 
or  for  responsibilities  thereafter  to  be  incurred ;  or  for  general  balances, 
which  may  be  due  from  time  to  time.  It  has  accordingly  been  held  that 
this  can  be  done.  And  it  was  suggested  by  the  chancellor,  in  a  recent  case, 
that  the  security  should  be  taken  in  a  sum  sufficiently  large  to  cover  the 
amount  of  the  floating  debt  intended  to  be  secured  thereby.2  And  the 
supreme  court  held,  many  years  ago,  that  a  judgment  may  be  entered  as 
a  security  for  future  advances,  beyond  the  amount  then  actually  due.3 

If  a  deed,  absolute  in  terms,  be  intended  as  a  mortgage,  and  it  be 
shown  by  parol  to  be  intended  also  as  a  security  for  future  advances,  it 
will,  as  between  the  parties,  be  treated  as  a  mortgage,  as  well  for  the 
original  debt,  as  for  the  subsequent  advances.4 

The  extent  to  which  a  mortgage  may  be  held  as  a  security  for  future 
advances,  as  against  subsequent  bona  fide  purchasers  and  mortgagees 
without  notice,  has  received  the  consideration  of  learned  judges.  In  Gor- 
don v.  Graham,  (cited  in  7  Viner,  52,  E.  pi.  o,  and  in  Powell  on  Mortg. 
544.)  it  was  held,  by  Lord  Chancellor  Cowper,  that  if  a  clause  be  con- 
tained in  a  mortgage,  making  it  a  security  for  future  loans,  subsequent 
loans  will  be  taken  as  part  of  the  original  transaction,  and  paid  before  a 
second  mortgage  intervening,  with  notice  of  the  clause.  And  Chancellor 
Kent  intimated  the  opinion,  that  where  a  subsequent  judgment  or  mort- 
gage intervened,  further  advances  after  that  period  could  not  be  cover- 
ed.5 If  a  mortgage  be  intended  as  a  security  for  subsequent  advances, 
it  would  seem  to  be  the  part  of  safety,  that  the  agreement  for  such  ad- 
vances should  appear  upon  the  face  of  the  security.  Though  without 
such  clause,  it  would  be  good  between  the  parties,  as  mortgagees  or  pur- 
chasers with  notice,  yet,  if  it  be  contained  in  the  mortgage  itself,  the  rec- 

1  St.  Andrew's  Church  v.  Tompkins,  7  8  Livingston  v.  MTnlay,  16  J.  E.  165. 

J.  Ch.  R.  14.     This  subject  was  treated  *  James  v.  Mowry,  6  J.  Ch.  E.  429 

of  to  some   extent,  under  the  head  of  S.  C.  2  Cowen,  247. 

fraud.     See  ante,  253,  254.  6  Brinkerboff  v.  Marvin,  5  J.  Ch.  R 

'  The  Bank  of  Utica  v.  Finch,  3  Barb.  827.    James  v.  Johnson,  6  id.  429. 
Ch.  II.  003. 


Oh.  7.]       Mortgage  for  Future  Adv  nces.         437 

ord  Incomes  notice  to  all  the  world  of  the  extent  and  purpose  of  the 
security.'  The  principal  is,  that  when  actual  notice  is  not  brought  home 
to  the  party,  the  record  of  the  mortgage  should  give  such  reasonable 
notice,  that  the  creditor  may,  by  the  inspection  of  the  record,  and  by 
common  prudence  and  ordinary  diligence,  ascertain  the  extent  of  the  in- 
cumbrance.2 

The  general  doctrine  is  certainly  well  established,  that  property  may 
be  bound  for  future  advances.  It  is  frequent,  said  Marshall,  Ch.  J, 
on  one  occasion,  for  a  person  who  expects  to  become  more  considerably  in- 
debted, to  mortgage  property  to  his  creditor,  as  a  security  for  debts  to  be 
contracted,  as  well  as  for  that  which  is  already  due.3  And  the  same 
doctrine  was  afterwards  established  by  the  same  court,  where  a  mort- 
gage was  held  to  secure  a  debt  contracted  afterwards,  on  account  of  prior 

CO  '  x 

advances  or  liabilities.4  It  was  objected  in  the  last  mentioned  case  that 
the  real  transaction  did  not  appear  upon  the  face  of  the  mortgage.  The 
deed  purported  to  secure  a  debt  of  thirty  thousand  pounds  sterling,  due 
to  all  the  mortgagees.  It  was  really  intended  to  secure  different  sums 
due  at  the  time  from  particular  mortgagees,  advances  afterwards  to  be 
made,  and  liabilities  to  be  incurred  to  an  uncertain  amount.  Upon  this 
point  Marshall,  Ch.  J.  said  that  it  is  not  to  be  denied  that  a  deed,  which 
misrepresents  the  transaction  it  recites,  and  the  consideration  on  which  it 
was  executed,  is  liable  to  suspicion.  It  must  sustain  a  vigorous  exami- 
nation. It  is,  certainly,  always  advisable  fairly  and  plainly  to  state  the 
truth.  But  if,  upon  investigation,  the  real  transaction  shall  appear  to 
bo  fair,  though  somewhat  variant  from  that  which  is  described,  it  would 
seem  to  be  unjust  and  unprecedented,  to  deprive  the  person  claiming  un- 
der the  deed,  of  his  real  equitable  rights,  unless  it  be  in  favor  of  a  per- 
son who  has  been,  in  fact,  injured  and  deceived  by  the  misrepresen- 
tation.5 

A  mortgage  given  on  the  purchase  of  real  estate,  to  secure  the  consid- 
eration money,  has  preference  over  any  other  lien  existing  against,  or  cre- 
ated by,  the  mortgagor.  Hence,  his  widow  is  not  entitled  to  dower  as 
against  the  mortgagee,6  though  she  is,  as  against  all  other  persons.7  On 
this  principle,  when  the  grantee,  being  indebted  for  the  purchase  money, 
conveyed  and  took  from  the  purchaser  two  mortgages,  and  they  were  re 

1  4  Kent's  Com.  176.     St.  Andrew's  *  Shirras  v.  Caig,  7  Cranch,  34. 

Church  v.  Tompkins,   7  J.   Ch.   R.  14.  6  Id. 

Pettibone  v.  Griswold,  4  Conn.  158.  B  Stow  v.  Tifft,  15  J.  R.  458. 

Q  Pettibone  v.  Griswold,  4  Conn.  158.  7  Collins  v.  Torrey,  7  id.  278.     Coles  v 

Btonghtbn  v.  Pasco,  5  id.  442.  Coles,  15  id.  319. 

3  United  States  v.  Hoc,  3  Crunch,  73. 


438  Trusts  [Ch.  7 

corded  at  the  same  time,  and  he  assigned  one  of  them  to  the  grantor,  to 
secure  his  unpaid  purchase  money,  and  afterwards  assigned  the  other  for 
value  to  a  third  person,  it  was  held  that  the  former  was  entitled  to 
priority.1 

The  recording  act  gives  priority  to  conveyances  according  to  the  or- 
der of  time  of  their  record,  and  they  are  considered  as  recorded  from  the 
time  of  their  delivery  to  the  clerk  for  that  purpose.2  Hence,  where  two 
mortgages  are  ta^en  and  recorded  simultaneously,  the  recording  acts  have 
no  application,  and  the  priority  must  be  determined  by  equitable  rules.3 
So  where  a  trustee  or  agent  takes. two  mortgages  on  the  same  property 
at  one  time,  for  different  cestui  que  t?~usts,  or  principals,  the  accidental 
recording  of  one  before  the  other  gives  it  no  priority.  So  where  two 
mortgages  upon  the  same  premises  were  recorded  at  the  same  time,  and 
each  mortgagee  being  cognizant  of  the  giving  the  other  mortgage  when  he 
took  his  own,  the  recording  act  has  no  application,  and  a  court  of  equity 
will  recognize  an  agreement  or  understanding  of  the  parties  that  one 
should  have  priority,  and  will  presume  that  it  was  delivered  first.5 

A  judgment  has  no  lien  upon  the  real  estate  of  the  judgment  debtor, 
until  the  judgment  roll  is  signed  and  filed,  nor  has  it  any  preference 
as  against  other  judgment  creditors,  purchasers,  or  mortgagees,  until  the 
record  thereof  be  filed  and  docketed.6 

Previous  to  the  Revised  Statutes,  a  judgment  in  a  court  of  record  in 
this  state  was  a  lien  upon  the  lands  of  the  judgment  debtor  from  the 
time  of  the  entry  of  such  judgment,  whether  docketed  or  not.  But  by 
the  statute  then  in  force,  if  the  judgment  was  not  properly  docketed,  it 
did  not  affect  the  lands  of  the  judgment  debtor  as  against  subsequent 
purchasers  or  mortgagees.7  Even  as  to  them,  however,  the  undocketed 
judgment  was  entitled  to  priority,  in  equity,  if  the  purchaser  or  mort 
gagee  had  notice  of  its  existence  at  the  time  of  his  purchase,  or  when  he 
took  his  mortgage.8  That  statute  made  no  provision  for  priority  in  favor 
of  the  lien  of  subsequent  judgment  creditors.  The  first  judgment  although 
not  docketed,  was  therefore  entitled  to  a  preference  over  the  lien  of  a 
junior  judgment,  which  had  been  docketed  as  directed  by  the  statute. 

1  Van  Rensselaer  v.  Stafford,  Hop.  560 ;  6  2  R.  S.  360,  §  12.  Barrie  v.  Dana,  20 
affirmed  on  appeal,  9  Cowen,  316.  J.  R.  307. 

2  1  R.  S.  756,  §  1.    Id.  760.  §  24.  7  1  R.  L.  of  1813,  p.  501,  §  3. 

1  Stafford  v.  Van  Rensselaer,  supra.  e  Buchan   v.   Sumner,  2  Barb.  Ch.  R. 

4  Rhoades  v.  Can6eld,  8  Paige,  545.  193.     Butler   v.   Lewis,   10    Wend.  544. 

5  Jones  v.  Phelps,  2  Barb.  Ch.  R.  440.      Davis   v.   The  Earl   of  Strathmore,   16 

Ves.  420. 


Cli.  7.J  Equitable  Liens.  430 

But  if  the  land  of  the  debtor  had  been  sold  by  the  sheriff,  uuder  an 
execution  upon  the  junior  judgment,  to  a  purchaser  who  was  ignorant  of  the 
existence  of  the  prior  undocke ted  judgment,  such  purchaser  took  the  land 
discharged  of  the  lien  of  the  undocketed  judgment.1 

The  Revised  Statutes,  however,  made  a  very  material  alteration  in 
the  law  relative  to  the  liens  of  judgments.  It  is  there  enacted,  that  no 
judgment  shall  affect  any  lands,  tenements,  real  estate  or  chattels  real, 
or  have  any  preference  as  against  other  judgment  creditors,  purchasers 
or  mortgagees,  until  the  record  thereof  shall  be  filed  and  docketed  as 
therein  directed.2  The  effect  of  this  provision  appears  to  be,  to  prevent 
the  common  law  lien  of  the  judgment  from  attaching  at  all  upon  the  real 
estate  of  the  judgment  debtor  until  the  judgment  has  been  docketed ; 
and  not  merely  to  protect  bona  fide  purchasers  and  incumbrancers,  who 
had  no  notice  of  the  existence  of  the  judgment  when  their  interests  in, 
or  liens  upon,  the  real  estate  of  the  judgment  debtor  accrued.  The  act 
of  1840  so  far  modified  the  Revised  Statutes,  as  to  require  the  judgment 
or  decree,  in  order  to  create  a  lien  upon  real  estate,  to  be  docketed  in 
the  county  where  the  lands  are  situated.3  This  is  slightly  altered  by 
the  code,  which  provides,1  that  on  filing  a  judgment  roll  upon  a  judg- 
ment, directing  in  whole  or  in  part  the  payment  of  money,  it  may  be 
docketed  with  the  clerk  of  the  county,  upon  the  filing  with  the  clerk  of 
the  county  where  it  was  rendered,  and  in  any  other  county,  upon  the 
filing  with  the  clerk  thereof,  a  transcript  of  the  original  docket,  and  shall 
be  a  lien  on  the  real  property  in  the  county  where  the  same  is  docketed, 
of  every  person  against  whom  any  such  judgment  shall  be  rendered,  and 
which  he  may  have  at  the  time  of  docketing  thereof,  in  the  county  in 
which  such  real  estate  is  situated,  or  which  he  shall  acquire  at  any  time 
thereafter,  for  ten  years  from  the  time  of  docketing  the  same  in  the 
county  where  it  was  rendered. 

A  court  of  equity  will  enforce  an  equitable  lien,  either  upon  a  legal  or 
an  equitable  estate  in  lands.  And  when  the  common  law,  or  a  statute, 
creates  a  lien  upon  a  legal  interest  in  land,  equity,  by  analogy,  some- 
times declares  and  enforces  a  similar  lien  upon  an  equitable  estate. 
But  when  this  lien  is  created  by  statute,  and  the  lien  itself,  as  well  as  the 
estate  against  which  it  is  sought  to  be  enforced,  is  purely  legal,  a  court  of 
equity  is  not  authorized  to  extend  the  lien  to  cases  not  provided  by  the 

'  Buchan  v.  Sumner,  2  Barb.   Ch.  R.        3  Laws  of  1840,  p.  394,  §  25. 
194.  *  Code,  §  282.    Buchan  v.  Sumner    2 

9  2  R.  S.  300,  §  12.  Barb.  Ch.  R.  194. 


440  Trusts  [Ch.  7 

statute.'  And  it  seems  equity  gives  effect  to  the  lien  of  a  judgment  as 
against  subsequent  purchasers  and  incumbrancers  upon  a  legal  title,  only 
so  far  as  the  lien  could  have  been  enforced  by  execution  at  law.  If, 
therefore,  the  judgment  be  one  upon  which  interest  cannot  be  levied 
upon  the  execution,  although  the  judgment  creditor  may,  in  a  suit  upon 
the  judgment,  recover  interest  by  way  of  damages,  he  is  not  entitled  to 
a  lien  for  the  interest,  but  only  for  the  amount  of  the  judgment  without 
interest.2 

We  have  hitherto  treated,  in  the  main,  of  mortgages  created  by  tne 
express  contract  of  the  parties  in  writing,  or  of  such  as  are  created  by  a 
parol  defeasance  to  a  deed  absolute  in  terms.  It  has  long  been  settled 
in  England,  notwithstanding  the  statute  of  frauds,  that  a  mere  deposit  of 
title  deeds,  upon  an  advance  of  money,  gives  an  equitable  lien3  against  a 
subsequent  purchaser  with  notice  ;4  and  such  deposit  will  cover  future 
advances,  if  it  appear  by  evidence  that  they  were  made  upon  the  faith 
of  the  security.5  The  doctrine  of  equita.ble  mortgages  received  its  firm- 
est support  from  Lord  Thurlow,  in  Russell  v.  Russell,  (supra.)  In  that 
case  it  was  held,  by  his  lordship,  that  a  mere  deposit  of  title  deeds  by  a 
debtor,  for  the  purpose  of  securing  a  sum  of  money,  gave  his  creditor,  in 
whose  hands  they  were  placed,  an  interest  in  the  land  to  which  they 
related,  so  as  to  enable  him  to  file  a  bill  for  a  sale.  The  principle  on 
which  the  doctrine  rests,  is  that  a  borrowing  of  money,  on  the  deposit  of 
title  deeds  as  a  pledge  of  repayment,  is  not  within  the  statute  of  frauds. 
A  court  of  law  could  not  assist  the  borrower  to  recover  back  his  title 
deeds  ;  because  to  an  action  of  trover  it  could  be  answered  that  the  same 
were  pledged  for  the  payment  of  a  sum  of  money,  and  that  till  the  money 
was  repaid,  the  party  had  no  right  to  them.  So,  if  the  borrower  came  into 
equity  for  relief,  he  would  be  told  that  before  he  sought  equity  he  must 
do  equity,  by  repaying  the  money,  in  consideration  for  which  the  deeds 
had  been  lodged  in  the  other  party's  hands.  The  doctrine  of  equitable 
mortgages  thus  seems  to  have  arisen  from  the  necessity  of  the  case.6 

But  this  species  of  security  has.  notwithstanding,  never  been  much  fa 
vored,  and  Lord  Eldon  said,  in  one  case,  that  nothing  required  to  be 

1  Buchan  v.  Sumner,  2  Barb.  Ch.  E.  194.  4  Hiern  v.  Mill,  13  Yes.  114. 

a  Mower  v.  Kip,  6  Paige,  91.     Tunstall  B  Ex  parte  Langston,  17  id.  227.    Ex 

v.  Trappes,  3  Sim.  R.  299.  DeLaVergne  parte  Whitbread,  19  id.  209.    Ex  parte 

v.   Evertson,    1    Paige,    182.     Mason   v.  Kensington,  2  Ves.  &  B.  79. 

Sudani,  2  J.  Ch.  R.  172,  180.  6  Keyes  v.  Williams,  3  Younge  &  C.  55, 

8  Russell  v.  Russell,  1  Bro.  C.  C.  269.  61,  per  Lord  Abinger. 
White's  Eq.  Cas.  440. 


Jh.  7.]  Equitable  Mortgages.  441 

matched  with  more  jealousy  than  this  doctrine  of  lien  by  the  deposit  of 
deeds  ;  especially  when  the  inference  contradicts  a  written  instruments 
And  in  an  earlier  case*  lie  said  :  "  I  remember  previously  to  Russell  v. 
Russell  it  was  very  much  doubted  whether  a  mere  deposit  of  deeds  con- 
stituted an  equitable  mortgage,  if  there  was  no  writing  to  manifest  the 
purpose  ;  resting  altogether  upon  parol ;  and  it  is  quite  competent  to  the 
man  who  put  the  deeds  into  the  hands  of  a  creditor,  without  reference  to 
the  debt,  afte/wavds,  from  favor  to  that  creditor,  to  say,  they  were  depos 
:ted  with  him  for  the  purpose  of  securing  his  debt ;  and  so  all  the  perjury 
the  statute  of  frauds  meant  to  avoid  is  introduced,  and  the  rule  changed. 
Rut  Lord  Thurlow  was  of  opinion,  and  that  is  not  now  to  be  disturbed, 
chat  the  fact  of  the  adverse  possession  of  the  deeds  in  the  person  claiming 
the  i;en,  and  out  of  the  other,  was  a  fact,  that  entitled  the  court  to  give 
an  interest."  On  several  other  occasions  Lord  Elden  strongly  disapproved 
of  the  case  of  Russell  v.  Russell,  but  it  has  nevertheless  been  constantly 
acted  upon  and  recognized  in  England  as  a  binding  authority.3 

The  doctrine  of  equitable  mortgage,  by  the  deposit  of  title  deeds  in 
the  hand  of  the  lender  of  money,  has  been  repeatedly  recognized  in  this 
state,  though  not  permitted  to  be  set  up  at  law  as  a  legal  estate.4  In 
one  case,  in  the  absence  of  other  proof,  evidence  of  an  advance  of  money, 
aud  the  finding  of  the  title  deeds  of  the  borrower  in  the  possession  of 
the  lender,  were  held  sufficient  to  establish  an  equitable  mortgage  ;  and 
the  assistant  vice  chancellor  approved  the  remarks  of  Lord  Eldon,  in  Ex 
parte  Kensington,  already  cited,  where  he  says,  "it  has  been  so  long  set- 
tled that  a  mere  deposit  of  deeds,  without  a  single  word  passing,  operates 
as  an  equitable  mortgage,  that  whatever  I  might  have  thought  originally, 
I  must  act  upon  that  as  settled  law." 

But  though  an  equitable  mortgage  be  good  between  the  parties,  and 
as  against  a  subsequent  mortgagee  with  notice,  yet  it  will  be  postponed 
in  favor  of  a  purchaser,  or  mortgagee  who  had  no  notice  of  the  equitable 
lien,  and  who  have  recorded  their  conveyances ;  for  the  equities  being 
equal,  the  law  must  prevail.5     In  most  of  the  cases  of  equitable  mort 

1  Ex  parte  Coombe,  17  Ves.  370.  Exch.  Cas.  303.  Tylee  v.  Webb,  G  Beavan, 

7  Ex  parte  Corning,  9  id.  117.  552. 

8  Ex  parte  Wetberell,  11  Ves.  398.  *  Jackson  v.  Parkburst  4  Wend.  3G0, 
Ex  parte  Ilaigb,  id.  403.  Ex  parte  376.  Jackson  v.  Dunlap,  1  J.  C.  114. 
Monntfurd,  14  id.  606.  Ex  parte  Ken-  Berry  v.  Mat.  Ins.  Co.  2  J.  Ch.  R.  603. 
Bington,  2  V.  &  B. 79.  Ex  parte  Hooper,  Parkist  v.  Alexander,  1  id.  394.  Rock- 
1  Meriv.  9.    Ex  parte  Warner,    19  Ves.  well  v.  Hobby,  2  Sandf.  Cb.  R.  9. 

202      Wintoi    v.   Lord    Anson,    8    Russ.        5  Ileirn  v.  Mill,  13  Ves.    114.     Plumb 
498.     Whitbreud   v.  Jonluii,  1    V.  &  C.     v.  Flewitt,  2  Anst.  432. 
K^.  Jim.  5G 


442  Trusts.  [Ch.  7. 

gages  which  have  been  upheld  by  the  courts,  they  have  been  created  on 
the  advance  of  money,  or  as  security  for  money  thereafter  to  be  advanced 
and  not  as  a  security  for  antecedent  indebtedness,  not  originating  on  the 
faith  of  the  security.  Though  the  latter  may  be  good  between  the  par 
ties,  they  probably  cannot  be  upheld  against  subsequent  incumbrancers 
without  notice,  unless  it  be  against  judgments  whose  liens  are  general. 

In  one  case,  an  agreement  to  give  a  mortgage  for  antecedent  indebted- 
ness was  held  to  create  a  specific  lien,  and  was  preferred  to  the  as- 
signees of  the  equitable  mortgagor  and  his  general  creditors.1  And  so 
where  there  is  an  incomplete  agreement  for  a  mortgage,  Lord  Lough- 
borough said  the  court,  after  the  death  of  the  party,  and  all  his  engage- 
ments are  to  be  arranged,  has  given  a  specific  lien.  This  doctrine  was 
evidently  approved  by  the  chancellor,  in  the  Matter  of  Howe,  (supra.) 
General  assignees  for  the  benefit  of  creditors,  created  by  the  voluntary 
act  of  the  debtor,  cannot  be  considered  as  bona  fide  purchasers.  Judg- 
ment creditors  have  no  preference  over  prior  equitable  claims  against  the 
estate  of  the  debtor.  And  hence  a  contract  for  a  mort^a^e,  or  for  the 
sale  of  real  estate,  has  been  preferred  to  judgments  recovered  subsequent 
to  the  contract.  And  an  agreement  for  a  mortgage  is,  in  equity,  a  spe- 
cific lien  upon  the  land.2 

It  has  been  held,  at  law,  that  a  legal  tender  of  the  money  due  on  the  bond 
and  mortgage,  made  to  the  mortgagee  or  his  assignees,  or  his  attorney,  ac- 
companied by  a  refusal,  discharges  the  land  from  the  lien  of  the  mortgage, 
though  the  debt  still  remains.3  And  though  the  tender  be  not  at  the  day, 
but  at  some  day  subsequent,  but  before  foreclosure,  the  same  consequences 
have  been  said  to  follow.4  But  in  equity,  a  tender,  unless  made  at  the  day, 
does  not  turn  what  was  before  an  equity  of  redemption  into  an  absolute 
estate  discharged  of  the  lien  of  the  mortgage  money,  which  remains  un- 
paid. But  a  tender  of  the  money  on  the  day  it  becomes  due  is  a  compli- 
ance with  the  condition,  and  by  the  terms  of  the  mortgage  divests  the 
whole  interest  or  estate  of  the  mortgagee  in  the  premises.5  If  the  money 
be  not  paid  at  the  day,  the  condition  is  broken,  and  the  interest  of  the 
mortgagor  in  the  land  is  then  reduced  to  a  mere  equity  of  redemption. 
An  actual  payment,  and  not  a  mere  tender,  then  becomes  necessary  to 

*  Burn  v.  Burn,  3  Ves.  jr.   576,   582.  4  Farmers'  Fire  Ins.  Co.  v.  Edwards, 

Case  of  Sir  Simon  Stuart,  cited  by  coun-  21  Wend.  407.    S.  C.  26  Wend.  541. 

eel  and  court ;  and  in  matter  of  Howe,  6  Merrit  v.    Lambert,   7    Paige,    344. 

1  Paige,  128.  Arnot  v.  Post,  2  Denio,  344.    Burnett  v. 

9  In  tbe  matter  of  Howe,  1  Paige.  125.  Dennison,  5  J.  Ch.  Pv.  35. 

3  Jackson  v.  Craft,  18  J.  R.  110. 


Ch.  7. |  Lien  for  Purchase  Money.  143 

discharge  the  legal  and  equitable  lien  of  the  mortgage  upon  the  land.  In- 
deed, at  common  law,  the  actual  payment  of  the  mortgage  money  and  in- 
terest, after  the  day,  was  not  sufficient  to  revest  the  legal  title  in  the 
mortgagor  or  his  assignees  ;  but  a  reconveyance  of  the  premises  was  neces- 
sary. And  it  is  for  these  reasons  that  a  bill  to  redeem  becomes  necessary 
when  the  mortgagee,  after  forfeiture,  refuses  to  receive  what  is  justly  due.1 

Analogous  to  an  equitable  mortgage,  in  some  respects,  is  the  lien  of  the 
vendor  of  real  estate,  for  the  whole  or  a  part  of  the  purchase  money,  where 
there  is  no  special  agreement  that  the  lien  shall  not  be  reserved.2  Prima 
facie  the  unpaid  purchase  money  is  a  lien  on  the  land,  and  it  lies  on  tho 
purchaser  to  show  that  the  vendor  agreed  to  rest  on  other  security,  and  to 
discharge  the  lands.  The  death  of  the  vendee  does  not  alter  the  claim,  for 
the  heir  cannot  be  permitted  to  hold  Avhat  his  ancestor  unconscientiously 
obtained.  And  a  thing  is  unconscientiously  obtained  when  the  consideration 
is  not  paid.3 

Nor  is  the  taking  of  the  negotiable  note  of  the  vendee  a  discharge  of 
the  lien.  And  if  a  part  of  the  purchase  money  be  paid  the  lien  is  good  as 
to  the  residue,  and  the  vendee  becomesa  trustee  as  to  that  which  is  unpaid.* 

But  if  security  be  taken  for  the  purchase  money,  upon  the  land,  or  in 
any  way,  the  lien  is  waived  unless  there  be  an  express  agreement  retaining 
it.5  So  the  lien  is  waived  when  a  note  or  bond  is  taken  of  the  vendee  for 
the  purchase  money,  in  which  a  third  person  joins  as  security.6 

This  lien  continues  to  exist  against  subsequent  purchasers  and  incum- 
brancers, when  they  advance  no  new  consideration,  or  had  notice  of  the 
lien  at  or  before  their  purchase.7  But  it  is  divested  by  a  sale  to  a  bona 
fide  purchaser  without  notice.8  It  is  superior  to  the  lien  of  a  prior  judg- 
ment against  the  vendee.9 

With  respect  to  the  mode  of  enforcing  a  lien  for  purchase  money,  the 
remedy  is  in  equity  ;  and  although  an  action  at  law  can  be  sustained,  yet 
a  court  of  law  cannot  grant  the  relief  which  is  adapted  to  the  necessity 
of  the  case.  The  party  holding  the  lien  is  not  bound  to  exhaust  his  rem- 
edy at  law,  but  may  come  into  equity  in  the  first  instance.10 

This  equitable  lien  is  not  lost  or  waived,  even  though  the  vendor, 

1  Mcrrit  v.  Lambert,  supra.  6  Fish.  v.  Uowland,  1  Paige,  20. 

2  Nairn  v.  Prouse,  6  Ves.   752,  760.        8  Id. 

Hughs  v.  Kearny,  1  Sch.  &  Lefr.  132.  '  Ilallock  v.  Smith,  3  Barb.  S.  C.  Pv.  267. 

3  Id.    Garsou  v.  Green,  1  J.  Ch.  R.        8  Fish  v.  Uowland,  1  Paige,   20. 
809.     Clark  v.  Hall,  7  Paige,  383.  »  Arnold  v.  Patrick,  6  Paige,  310. 

*  Garson  v.  Green,  supra.     Hallock  v.       10  Bradley  v.  Bosley,  1  Barb.  Ch.  R.  152 
Smith,  3  Barb.  S.  C.  R.  270.     Blackburn 
v.  Grayson,  1  Bro.  C.  C.  420. 


144  Trusts.  [Cli.  7. 

through  the  fraud  of  the  vendee,  supposes  himself  fully  paid.  Thus,  if  upon 
the  sale  of  a  farm,  the  purchaser  should  pay  for  half  of  it  in  good  money, 
and  for  the  other  half  in  the  •worthless  bills  of  a  broken  and  insolvent 
bank,  from  which  nothing  could  be  obtained,  the  vendee  fraudulently  rep- 
resenting such  bills  to  be  good  and  collectable,  the  vendor  would  have  the 
right  to  elect  either  to  rescind  the  sale,  and  have  a  reconveyance  of  the 
land,  or  to  charge  the  land  itself  with  the  half  of  the  purchase  money  which 
remained  unpaid,  as  an  equitable  lien  upon  such  land.1 

But  this  equitable  lien  for  the  purchase  money  does  not  exist  in  favor 
of  a  person  who  indorses  a  note  for  the  maker,  to  enable  him  to  purchase 
land,  and  who  accordingly  transfers  the  note  to  the  vendor  in  part  pay- 
ment, and  the  indorser  is  compelled  to  pay  it.  The  transaction  of  itself 
imports  a  reliance  on  the  personal  liability  of  the  maker,  and  does  not 
imply  an  agreement  for  a  lien.2  It  might  be  otherwise,  if  the  note  Avas 
indorsed  upon  the  faith  of  an  agreement  between  the  purchaser  and  the 
indorser,  that  the  note  should  be  transferred  to  the  vendor  in  payment  of 
the  purchase  money.  In  such  case  there  would  be  an  equity  in  favor  of 
the  indorser,  if  compelled  to  pay  the  note,  that  he  should  be  in  as  good 
plight  with  respect  to  security  as  the  vendor  himself.3 

This  doctrine  of  lien  for  the  purchase  money,  says  Lord  Eldon,  is  prob- 
ably derived  from  the  civil  law  as  to  goods,  which  goes  further  than  our 
law ;  by  which,  though  the  right  of  stoppage  in  transitu  is  founded  in 
natural  justice  and  equity,  yet  if  possession,  either  actual  or  constructive, 
was  taken  by  the  vendee,  the  lien  was  gone.4 

"With  respect  to  the  interest  of  the  mortgagee,  before  foreclosure,  it  was 
long  well  settled  that  it  was  in  equity  a  chattel  interest,  and  personal 
assets,  and  went  to  the  executor.5  This  question  at  law  depended  on  the 
fact,  whether  the  mortgage  was  in  fee  or  for  years  ;  in  the  former  case,  the 
legal  estate  went  to  the  heir  ;  in  the  latter,  to  the  executor.  But  with 
regard  to  the  money  due  upon  the  mortgage,  it  is  fully  established  in 
equity,  that  in  every  case  it  is  to  be  paid  to  the  executor  or  administra- 
tor of  the  mortgagee  ;  by  reason  of  the  rule  in  equity,  that  the  satisfac- 
tion shall  accrue  to  the  fund  that  sustained  the  loss.6  Doubts  seem  to 
have  existed  at  one  time  on  this  head,  in  cases  in  which  the  mort<ja£e 
was  in  fee,  and  there  was  neither  bond,  or  covenant  for  payment  of  the 

1  Bradley  v.  Bosley,  1  Barb.  Ch.  R.  152.  ley   v.   Audley,   id.   193.     Deuiarest  v. 

■  M'Kay  v.  Green,  3  J.  Ch.  R.  58.  Wynkoap,  3  J.  Ch.  R.  135. 

Mackreth  v.  Symons,  15  Ves.  354.  B  Winn    v.    Littleton,  2  Ch.   Cas.    51. 

xi.  342.  S.    C.    1    Tern.   3.     Tabor   v.     Tabor,   3 

•  Tabor  v.  Grover,  2  Veru.  3G7.     And-  Svvau»t.  036. 


Ch.  7.J  Mortgagee  in  Possession.  445 

money ;  or  where  the  consideration  for  redemption  was  upon  payment  to 
the  mortgagee,  his  heirs  or  executors  ;'  but  the  law  is  now  clearly  settled, 
that  whatever  be  the  form  of  the  mortgage,  it  will  be  part  of  the  personal 
estate  of  the  mortgagee.  Consequently,  if  the  mortgage  be  in  fee,  the 
heir  or  devisee  of  the  mortgagee  will  be  a  trustee  ")f  the  land  for  the  ex- 
ecutor or  administrator  ;  and  will,  upon  application,  be  directed  to  con- 
vey to  him.2  But  in  this  state  it  has  been  shown,  that  the  mortgage  has 
been  treated  as  a  security  for  a  debt,  and  that  the  estate  in  the  land,  for 
most  purposes,  remained  in  the  mortgagor  until  foreclosure.  And  the 
Revised  Statutes  have  expressly  declared,  that  the  mortgage  shall  be 
deemed  assets  in  the  hands  of  the  personal  representatives  of  the  mort- 
gagee.3 A  mortgage  is  not  considered  a  conveyance  of  land  within  the 
statute  of  frauds,  and  it  may  be  assigned  by  mere  delivery.4  Even  if 
the  assignment  be  in  writing,  as  is  most  usual,  and  be  recorded,  it  is  not 
in  itself  notice  of  such  assignment  to  the  mortgagor,  his  heirs  or  personal 
representatives,  so  as  to  invalidate  any  payment  made  by  them,  or  either 
of  them,  to  the  mortgagee.5  The  assignee,  whether  in  writing  or  by 
parol,  should,  for  his  own  protection,  give  notice  thereof  to  the  mortgagor, 
or  other  party  bound  to  pay  it.6 

The  assignee  of  a  bond  and  mortgage  takes  them  subject  to  all  the 
equities  of  the  original  mortgagor,  but  not  to  the  latent  equity  of  a  third 
person.7 

With  respect  to  the  rights  and  duties  of  a  mortgagee  in  possession,  it 
may  be  stated,  in  general,  that  he  is  liable  to  account  for  the  rents  and 
profits  of  the  estate,  and  to  surrender  up  the  possession  when  the  debt  is 
satisfied.  lie  may  pay  off  a  senior  incumbrance,  and  on  a  bill  filed  to 
foreclose,  and  to  be  reimbursed  the  sum  he  has  paid,  he  is  entitled  to  a 
decree  of  indemnity  out  of  the  proceeds  of  the  sale  of  the  mortgaged 
preuiises.8  And  when  a  satisfaction  of  a  senior  mortgage  would  not  be  as 
beneficial  to  the  plaintiff  as  an  assignment  thereof,  he  may  file  a  bill  in 
equity  against  the  holder  of  such  senior  mortgage,  and  compel  anassign- 


1  Coote  on  Mortgages,  529.  Paige,  467,  S.  C.     Murray  v.  Livingston, 

8  Demarest  v.   Wynkoop,  3  J.  Ch.  R.  2  J.  Ch.  E.  441.     Livingston  v.  Dean,  id. 

145.     Ellis  v.  Graves,  2  Ch.  Cases,  50.  479.    James  v.  Mowry,  2  Cowen,  246. 

*  2  R.  S.  83,  §  6,  subd.  8.  Pendleton  v.  Fay,  2  Paige,  202.  Evert- 
4  Run van  v.  Mersereau,  11  J.  R.  534.  son  v.  Evertson,  5  id.  644.  L'Aniourcux 
"  1  R.  S.  763,  §  41.    James  v.  Mowry,  v.  Vandenburgh,  7  id.  316. 

2  Cowen,  246.  8  Dale   v.    M'Evers,    2    Cowen,    119. 

*  Id.  Finch  v.  Brown,  3  Beavan,  70.  Wilson 
'Evans  v    Ellis,    5   Denio,    640.     11  v.  Chier,  id.  126. 


446  Trusts.  [Ch.  7 

ment  of  the  same  to  himself,  after  tendering  the  amount  due  and  demand- 
ing an  assignment.1 

A  mortgagee  in  possession  is  entitled  to  an  allowance  for  necessary  re 
pairs,  to  be  allowed  in  stating  his  account  for  the  rents  and  profits.  He 
may  be  allowed  for  money  expended  in  supporting  the  title  of  the  mort- 
gagor, when  it  has  been  assailed.  But  he  is  allowed  nothing  for  his  trouble 
in  receiving  the  rents  and  profits  of  the  estate.  So  where  a  mortgagee 
entered  and  cleared  up  wild  land,  the  expense  of  doing  so  was  not  allowed 
him,  though  the  estate  was  probably  increased  in  value.  To  make  such 
an  allowance,  it  was  said,  would  be  compelling  the  owner  to  have  his  lands 
cleared,  and  to  pay  for  clearing  them,  whether  he  consented  to  it  or  not.3 
The  precedent  would  be  liable  to  abuse,  and  would  be  increasing  the  diffi- 
culties in  the  way  of  the  right  of  redemption.  Many  a  debtor,  said  the 
chancellor,  in  the  same  case,  may  be  able  to  redeem  by  refunding  the 
debt  and  interest,  but  might  not  be  able  to  redeem  under  the  charge  of  pay- 
ing for  the  beneficial  improvements,  which  the  mortgagee  had  been  able  and 
willing  to  make.  The  English  courts  have  always  looked  with  jealousy 
at  the  demands  of  the  mortgagee,  beyond  the  payment  of  his  debt.2  The 
older  and  the  modern  English  cases  speak  a  uniform  language  on  this 
subject.4 

The  mortgagee,  however,  is  not  bound  to  account  for  the  proceeds  of  im- 
provements made  by  himself.5 

In  some  of  the  states  there  are  statutory  regulations  on  this  subject, 
which  modify  the  rules  which  have  been  laid  down. 

Taxes  are  a  legal  charge  upon  the  estate,  and  if  necessarily  paid  by  the 
mortgagee,  may  be  added  to  the  mortgage  debt ;  but  it  is  otherwise  of  pay- 
ments for  insurances  effected  by  the  mortgagee,  unless  by  special  agree- 
ment with  the  mortgagor.6  So  money  paid  by  the  mortgagee,  to  redeem 
the  premises  from  a  tax  sale,  become  part  of  the  mortgage  debt  in  equity.' 

With  respect  to  the  mortgagor,  he  was  treated  at  law  as  tenant  at  will 
of  the  mortgagee,  and  was  liable  to  be  turned  out  of  possession  by  an 
ejectment,  without  even  a  notice  to  quit.  In  this  state,  the  courts  held, 
at  an  early  day,  before  an  ejectment  for  a  mortgagee  was  abolished,  that 
a  notice  to  quit  was  necessary,  as  in  other  cases  of  tenancy.3     But  aa 

1  Pardee  v.  Van  Anken,  3  Barb.  S.  0.  6  Moore  v.  Cable,  1  J.  Ch.  R.  385 
R.  534:.  Bell  v.  Mayor  of  N.  Y.  10  Paige,  49 

2  Moore  v.  Cable,  1  J.  Ch.  R.  387,  388.        6  Faure  v.  Winans,  Hopk.  283. 
s  Id.  7  Burr  v.  Veeder,  3  Wend.  412. 

4  French  v.  Bacon,  2  Atk.  120.     God-        8  Jackson   v.   Langhhead,   2  J.  R.  75. 
frey  v.  Watson,  3  id.  517.    Bonethorn  v.    Jackson  v.  Green,  4  id.  186, 
Hockmore,    1    Vern.    316.     Sandon  v. 
Hooper,  6  Beavan,  246. 


Ch.  7.J  Redemption.  447 

against  all  persons  but  the  mortgagee  he  was  treated,  even  iX  law,  while 
he  remained  in  possession,  as  the  beneficial  owner  of  the  estate.  He  is 
permitted  to  receive  the  rents  and  profits  of  the  estate.  His  estate  is 
liable  to  be  sold  on  execution  against  him.  It  is  liable  to  the  dower  of 
the  wife,  and  the  curtesy  of  the  husband.1  Both  the  mortgagee  and 
mortgagor  are  treated  in  equity  as  trustees,  and  neither  will  be  permit 
ted,  while  in  possession  of  the  estate,  to  do  any  act  which  will  essen- 
tially injure  the  rights  of  the  other  party.  It  has  been  shown  under  tbo 
head  of  injunction,  that  both  will  be  restrained  from  the  commission  of 
waste.2 

"With  respect  to  the  remedies  which  the  law  affords  upon  mortgages, 
it  may  be  observed,  in  the  first  place,  that  the  right  of  redemption  by  the 
mortgagor  or  his  representatives  is  incident  to  every  mortgage,  and  that 
the  courts  look  with  jealousy  on  all  attempts  to  impair  or  embarrass  the 
exercise  of  it.3  This  remedy  can  be  asserted  only  in  a  court  of  equity, 
for  at  law  the  estate  becomes  absolute  on  failure  to  pay  at  the  day.  Nor 
is  the  right  of  redemption  confined  to  the  mortgagor,  his  heirs,  executors, 
administrators,  or  assigns,  or  subsequent  incumbrancers.  It  extends  to 
\\\  persons  claiming  any  subsisting  interest  whatever  in  the  premises  as 
against  the  mortgagor.4  A  purchaser  of  lands  at  a  sheriff's  sale  is  en- 
titled to  redeem  a  prior  mortgage5  A  subsequent  judgment  creditor  is 
entitled  to  redeem.6  So  a  junior  mortgagee  is  entitled  to  redeem  a  prior 
mortgage,  if  due,  and  to  an  assignment  on  redeeming.7  So  a  junior 
Incumbrancer,  who  was  not  made  a  party  to  the  suit  for  foreclosure,  is 
not  bound  by  the  decree,  and  may  thereafter  redeem.5  But  if  a  junior 
judgment  creditor  purchase  on  a  statute  foreclosure,  and  then  conveys 
,vith  warranty,  his  right  to  redeem  is  extinguished.  The  effect  of  a  stat- 
ute foreclosure  is  to  transfer  to  the  purchaser  the  rights  of  the  mort- 
al gee.  so  far  as  he  has  any  claim  or  interest  in  the  mortgaged  premises, 
Tor  the  security  of  his  debt,  and  also  to  transfer  to  him  so  much  of  the 
equity  of  redemption  as  was  not  bound  by  the  lien  of  a  junior  judgment 
or  mortgage.9     Creditors,  by  judgment  or  mortgage,  whose  liens  attach 

1  See  Ante.  6  Matter  of  Scrugham,  Eopk.  68. 

■  Brady  v.  Waldron,  2  J.  Oh.  E.  148.  •  Burnet    v.    Deunison,   5  J.   Ch.  R. 

•  HoldrWge  v.  Gillespie,  2  id.  30.  Hen-  35,  40. 

ry  \.  Davifl,  7  id  40.     S.  C.  on  appeal,  2  7  Pardee  v.  Van  Anken.  3  Barb.  S.  0. 

Coweu,  824.     i  Fonb.  Eq.  B.  3,  ch.  1,  §  8.  E.  534. 

I  e  Haines  v.  Beacb,  3  J.  Cb.  R.  459 

4  Grant  v.  Duane,  9  J.  R.  591.  ■  Vroom  v.  Ditma9,  4  Paige,  531 


448  Trusts  [Ch.  7 

intermediate  a  prior  mortgage  and  a  statute  foreclosure  of  it,  may 
redeem.1 

If  the  mortgage  be  by  absolute  deed,  with  a  parol  agreement  that  it 
shall  stand  as  security,  one  acquiring  title  under  a  judgment  against  the 
mortgagor  may  redeem.2  And  he  may  so  redeem  against  the  mortgagee. 
or  his  heirs,  or  personal  representatives.3  But  if  the  mortgagee,  by  a 
deed  absolute  on  its  face,  sell  to  a  bona  fide  purchaser  and  receives  the 
purchase  money,  the  mortgagor's  remedy  is  against  the  mortgagee,  and 
he  cannot  redeem.  The  bona  fide  purchasers  who  have  actually  pail 
the  purchase  money,  without  notice  of  the  equitable  rights  of  the  mort- 
gagor, cannot  be  disturbed.4 

A  sale,  or  lease  of  part  of  the  premises,  by  the  mortgagee,  before  fore- 
closure, does  not  affect  or  prejudice  the  mortgagor's  right  of  redemption, 
nor  deprive  the  mortgagee  of  the  right  to  foreclose.5 

With  regard  to  the  amount  to  be  paid  on  redeeming,  it  may  be  said, 
that  as  taxes  are  a  legal  charge  upon  the  estate,  they  may,  if  necessarily 
paid  by  the  mortgagee,  be  added  to  the  mortgage  debt.6  But  as  the 
English  doctrine  of  tacking  is  superseded  by  our  recording  laws,  a  prior 
mortgagee  who  acquires  the  equity  of  redemption,  or  a  judgment  subse 
quent  to  a  second  mortgage,  cannot  compel  the  second  mortgagee,  on 
redeeming,  to  pay  the  judgment  as  well  as  his  mortgage.7  Nor  can  a 
prior  mortgagee  enlarge  his  demand  beyond  what  appears  upon  the  record, 
in  consequence  of  a  separate  agreement  with  the  mortgagor,  to  the  preji 
dice  of  a  subsequent  mortgagee,  without  notice  of  the  agreement.8  Nor 
can  a  mortgagee,  as  against  subsequent  bona  fide  grantees  or  incumbran- 
cers, hold  his  mortgage  as  a  lien  for  another  distinct  debt,  upon  parol 
proof  that  it  was  intended  to  cover  that  also.9  In  general,  however,  prior 
incumbrances  must  be  paid  off  by  a  party  coming  to  redeem,  according 
to  their  priorities  ;  and  the  party  coming  to  redeem  must  pay  the  costs 
of  the  suit.10  But  a  mortgagee  may  so  conduct  as  not  only  to  forfeit  his 
right  to  costs,  but  as  to  subject  himself  to  the  costs  of  the  other  party.1' 

1  Benedict    v.    Gilman,    4    Paige    58.        8  St.  Andrews  Church  v.  Tompkins,  7 
Vrooin  v.  Ditmas,  id,  526.  J.  Ch.  R.  14. 

2  Van  Buren  v.  Olmstead,  5  Paige,   9.        9  The  Bank  of  Utica  v.  Finch,  3  Barb. 

3  Id.  Ch.  R.  293. 

4  Whittick  v.  Kane,  1  Paige,  202.  J0  Benedict  v.  Gilman,  4  Paige,  58. 

6  Wilson  v.  Troup,  7  Ch.  R.  25.  n  Brockway    v.  Wells,    1    Paige,   191. 

6  Faure  v.  Winans,  Hopk.  283.     Burr  Detillan  v.   Gale,  7  Ves.  583.     Slee  v, 

v.   Veeder,    3   Wend.  412.     Rapelye   v.  Manhattan  Co.    1  Paige,   48.     Henry  v 

Prince,  4  Hill,  119.  Davis,  7  J.  Ch.  R.  40. 

T  M'Kinstry  v.  Marvin,  3  J.  Ch.R.  4G6. 


Ch.  T.J  Remedies  of  Mortgagee.  449 

A  judgment  creditor,  redeeming  premises  after  statute  forclosure,  is  not 
bound  to  pay  the  costs  of  such  foreclosure.  The  amount  he  is  to  pay 
does  not  depend  on  the  sum  bid  at  the  sale  by  the  mortgagee  at  such 
statute  foreclosure,  but  on  the  amount  actually  due  at  the  time  of  such 
sale,  unless  it  has  been  subsequently  paid  by  the  person  who  was  equi- 
tably bound  to  pay  it.' 

"With  regard  to  the  remedies  of  the  mortgagee  to  enforce  payment  of 
the  mortgage  money,  where  the  same  was  secured  also  by  a  bond,  note,  or 
personal  covenant,  the  rule  formerly  was  that  the  creditor  had  three  rem- 
edies, all  or  either  of  which  he  might  pursue  until  his  debt  was  satisfied. 
He  might  bring  an  action  at  law  on  the  bond,  note  or  covenant,  get  pos- 
session of  the  rents  and  profits  of  the  land  mortgaged,  by  an  ejectment, 
or  foreclose  the  equity  of  redemption,  and  sell  the  land  to  pay  the  debt, 
by  a  bill  in  chancery.8  And  these  remedies  might  all  be  pursued  at  the 
same  time. 

But  now  by  statute  in  this  state,  no  action  of  ejectment  can  be  main- 
tained by  a  mortgagee,  or  his  assigns  or  representatives,  for  the  recovery 
of  the  possession  of  the  mortgaged  premises.3  The  object  of  the  law 
was  to  compel  the  mortgagee  to  resort  to  equity  to  enforce  his  security, 
and  to  prevent  the  unnecessary  multiplicity  of  suits. *  The  party  may, 
however,  bring  a  personal  action  to  recover  the  mortgage  debt,  but  he 
cannot  sell,  under  his  execution,  issued  upon  the  judgment,  for  such  debt, 
the  equity  of  redemption  of  the  mortgagor,  his  heirs  or  assigns.5 

In  an  action  for  the  foreclosure  or  satisfaction  of  a  mortgage,  the 
court  is  empowered  to  decree  a  sale  of  the  mortgaged  premises,  or  of 
such  part  as  may  be  sufficient  to  discharge  the  amount  due  on  the  mort- 
gage, and  the  costs  of  suit.6  And  when  the  action  is  for  the  satisfaction 
of  a  mortgage,  the  court  has  not  only  power  to  decree  and  compel  the 
deliverance  of  the  possession  of  the  mortgaged  premises  to  the  purchaser 
thereof,  but,  on  the  coming  in  of  the  report  of  sale,  it  has  also  power  to 
decree  and  direct  the  payment,  by  the  mortgagor,  of  any  balance  of  the 
mortgage  debt  that  may  remain  unsatisfied  after  a  sale  of  the  premises, 
in  the  case,  in  which  such  balance  is  recoverable  at  law  ;  and,  for  that  pur- 
pose, may  issue  the  necessary  executions,  as  in  other  cases,  against  the 
property  of  the  mortgagor,  or  against  his  person,  in  cases  where  it  is  Ha- 

'"  Benedict  v.  Gilman,  4  Paige,  58.  3  2  R.  S.  312,  §  57. 

1  Jackson  v.  Hull,  10  J.  R.  481.  Dunkley  *  See  notes  of  Revisers,  3  R.  S.  673. 

v.  Vun  Btiren,  3  J.  Ch.  R.  330.    Jones  v.  2  R.  S.   368,   §  31 ;  and  see  Tice  ▼. 

Conde,  6  id.  77.     Hughs  v.  Edwards,  9  Amu,  2  J.  Ch.  R.  125. 

Wheat.  489.  •  2  R.  S.  191,  §  151. 
Eq.  Ji;r                                        57 


450  Trusts.  fCh.  7 

ble  to  imprisonment.1  After  the  commencement  of  an  action  in  equity, 
and  while  the  same  is  pending,  and  after  a  decree  rendered  therein,  no 
proceedings  whatever  conld  be  had  at  law  for  the  recovery  of  the  debt 
secured  by  the  mortgage,  or  any  part  thereof,  unless  authorized  by  the 
court.2  The  practice  in  foreclosure  actions  does  not  fall  within  the 
scope  of  this  treatise,  and  will  be  found  at  large  in  books  devoted  to  that 
subject. 

A  summary  mode  of  foreclosing  mortgages  at  law,  by  advertisement 
and  sale,  is  provided  by  statute  for  those  cases,  where  the  mortgage  con- 
tains a  power  to  the  mortgagee,  or  any  other  person,  to  sell  the  mortgaged 
premises,  upon  default  being  made  in  any  condition  of  the  mortgage.3 
The  description  of  this  remedy  belongs  to  treatises  on  the  practice  at  law. 
There  are  many  cases  where  this  remedy  cannot  be  applied,4  and  there  are 
none  in  which  it  supersedes  an  action  in  a  court  of  equity.  The  latter, 
therefore,  is  with  us  the  most  usual,  as  well  as  the  most  effective  remedy, 
in  cases  of  non-payment  of  demands  secured  by  mortgage. 

There  are  two  modes  of  foreclosing  mortgages  in  equity  ;  the  one  is 
called  a  strict  foreclosure,  where  by  the  decree  the  equity  of  the  mortgagor, 
and  of  those  claiming  under  him,  in  the  post,  is  barred,  and  the  complete 
title  is  vested  in  the  mortgagee  ;5  the  other  is  the  ordinary  foreclosure 
and  sale,  where  the  premises  are  directed  to  be  sold  to  pay  the  debt  and 
costs,  and  the  surplus  to  be  returned  to  the  mortgagor  or  his  personal  rep- 
resentatives or  assigns.  A  strict  foreclosure  of  the  mortgaged  premises 
does  not  per  se  operate  as  an  extinguishment  of  the  debt.  It  does  not 
produce  that  effect,  unless  the  lands  mortgaged  were  of  sufficient  value  to 
pay  the  debt.6  Consequently,  after  a  strict  foreclosure,  the  mortgagee 
may  resort  to  the  bond,  if  one  was  taken  with  the  mortgage,  and  a  plea,  of 
strict  foreclosure  will  be  no  answer  to  the  action,  unless  it  be  averred 
that  the  land  was  equal  in  value  to  the  amount  of  the  debt.7 

Tf  the  mortgage  is  the  only  security  for  the  debt,  and  the  mortgagor  is 


1  2  R.  S.  191,  §  152.  See  Fon-impris-  7  Id.  Ilatch  v.  White,  2  Gallison,  152. 
ournent  Act  of  1831,  p.  396.  M'Cartby  The  Globe  Ins.  Co.  v.  Lansing,  5  Cowen, 
v.  Graham,  8  Paige,  480.  380.    Lansing  v.  Goelet,  9  id.  346,  402. 

2  2  R.  S.  191,  §  153.  Dunkley  v.  Van  Buren,  3  J.  Ch,  R.  330. 
'  2  R.  S.  545.  See  the  elaborate  opinion  of  Jones,  chan 
4  See  Ferguson  v.  Kimball,  3  Barb.  Ch.  cellor,  in  the  court  of  errors,  in  Lansing 

R.  G16.     S.  C.  2  Comst.  360.  v.  Goelet,  9  Cowen,  348    et  seq.  on  the 

*  Perine  v.  Dunn,  4  J.  Ch.  R.  140, 143.  history  and  practice  of  foreclosure  in 
Buckman  v.  Astor,  9  Paige,  520.  this  state. 

*  Spencer  v.   Harford,   4   Wend.  385. 


Ch.  7.j  Strict  Foreclosure.  451 

not  personally  bound  for  the  payment  of  it.  as  sometimes  is  the  case,  tho 
only  remedy  of  the  mortgagee,  for  the  recovery  of  his  demand,  is  to  take 
the  estate  for  the  debt,  on  the  mortgagor's  failing  to  redeem  when  called 
on  in  equity  for  that  purpose. 

Upon  a  strict  foreclosure  of  a  mortgage,  if  the  value  of  the  land  be 
equal  to  the  debt,  the  debt  is  paid.2 

The  practice  of  the  court  of  chancery  in  England,  on  the  foreclosure  of 
mortgages  upon  estates  in  possession,  allows  the  creditor  to  proceed  at 
law,  after  the  decree  of  foreclosure,  upon  the  bond  or  personal  contract  of 
the  mortgagor,  for  the  recovery  of  the  debt.  But,  in  such  case,  if  the 
creditor  so  elects  to  pursue  his  personal  remedy,  he  waives  the  benefit  of 
his  decree  of  foreclosure,  and  reinstates  the  mortgagor  in  his  right  to  re- 
deem the  estate.  He  cannot  at  the  same  time  retain  the  estate,  which 
has  become  absolute  in  him  by  the  foreclosure,  and  recover  the  debt,  which 
is  the  consideration  of  that  estate,  by  an  action  on  the  bond.3  But  the 
practice  in  this  state  has  been  different.  We  have  always  treated 
the  mortgage  as  a  security  for  the  debt.  And  on  a  decree  of  foreclosure, 
when  there  was  a  personal  contract  to  pa}r  the  debt,  directed  a  sale  of  the 
premises,  and  the  application  of  the  purchase  money  to  the  satisfaction 
of  the  decree  ;  and  if  a  balance  of  the  debt  remained  unpaid,  allowed  the 
creditor  to  resort  to  the  bond  or  other  contract  for  the  payment  of  the 
money  for  the  deficiency,  without  opening  the  foreclosure.' 

The  principle  on  which  the  subsequent  action  on  the  bond  was  held  in 
England  to  open  the  previous  decree  of  foreclosure,  does  not  apply  to  de- 
crees of  foreclosure  and  sale.  The  principle  is,  that  the  mortgagee  who 
obtains  a  decree  of  foreclosure  must  be  deemed,  as  long  as  he  holds  under 
it,  to  take  the  estate  for  the  debt ;  and  if  he  afterwards  proceeds,  as  he 
may  do,  on  his  bond  for  the  recovery  of  the  debt,  he  must  be  deemed  to 
waive  his  decree,  and  let  in  the  mortgagor  to  the  right  of  redemption.4 
But  that  rule  does  not  apply  in  the  case  of  a  judicial  sale.  The  object  of 
the  sale  is  to  convert  the  estate  into  money,  to  be  applied  to  the  payment 
of  the  debt.  And  when  the  proceeds  are  thus  applied,  the  whole  or  some 
portion  of  the  debt,  equal  to  the  avails  of  the  mortgaged  premises,  is  sat- 
isfied. The  mortgagor  has  thus  obtained  the  benefit  of  it  by  the  appli- 
cation of  the  purchase  money  to  the  payment  or  reduction  of  the  debt. 

1  Per  Jones,  Ch.,  in  Lansing  v.  Goelet,  Dashwood  v.  Blithway,  Eq.  Cases  Abr 

9  Cowen,  352.  317.     Perry  v.  Baker,  8  Ves.  528.     13 

■  Morgan    v.   Plumb,   9    Wend.    292.  id.  198. 

Spencer  v.  Harford,  4  id.  S85.  ■  9  Cowen,  346,  382. 

8  Per  Jones,  Ch.,  in  Lansing  v.  Goelet,  6  Per  Jones,  in  Lansing   r.  Goelot.  9 

9   Cowen,   381.     1    Mad.    Ch.   Pr.   421.  Cowen,  368. 


452  Trusts.  [Oh.  7 

If  the  proceeds  are  insufficient  to  satisfy  the  debt,  and  a  bond  or  person- 
al covenant  was  given  with  the  mortgagor,  the  mortgage  remains  liable  for 
the  deficiency  ;  and  he  cannot  complain,  upon  being  called  upon  to  pay  it ; 
and  upon  no  principle  of  equity  can  he  be  permitted  for  that  cause  to 
disturb  the  sale,  or  reclaim  the  premises  from  the  purchaser. 

The  doctrine  seems  to  have  been,  in  this  state,  prior  to  the  Revised 
Statutes  of  1830,  that  on  a  decree  of  strict  foreclosure,  if  the  premises 
mortgaged  were  of  less  value  than  the  debt,  and  the  mortgagor  had  given 
a  bond,  note  or  covenant  to  pay  the  money,  to  hold  him  liable  at  law  for  the 
deficiency,  without  opening  the  decree  of  foreclosure.  In  case  of  a  decree  of 
foreclosure  and  sale,  or  of  a  sale  without  a  foreclosure,  if  the  proceeds  of  the 
sale  were  insufficient  to  pay  the  debt,  the  mortgagor  was  liable  for  the  de- 
ficiency at  law,  and  the  proceeding  to  enforce  the  collection  of  the  balance 
did  not  affect  the  previous  sale,  or  let  in  the  mortgagor  to  redeem.  And 
thus  a  strict  foreclosure  did  not  extinguish  the  debt,  except  in  cases  where 
there  was  no  personal  agreement  of  the  mortgagor  to  pay  the  debt,  or  tho 
mortgaged  premises  were  at  least  equal  in  value  to  the  amount  of  the  debt.' 

The  object  of  the  Revised  Statutes  was,  in  part,  to  adopt  the  decisions 
of  the  courts,  and  thus  declare  the  power  of  the  court,  on  a  bill  for  a  fore- 
closure or  a  satisfaction  of  a  mortgage,  whether  the  defendant  appear 
or  not ;  to  decree  a  sale  of  the  mortgaged  premises,  or  such  part  thereof 
as  might  be  sufficient  to  discharge  the  amount  due  on  the  mortgage,  and 
the  costs  of  suit ;  and  in  case  of  a  deficiency,  when  the  balance  was  recov- 
erable at  law,  to  decree  and  direct  the  payment  of  the  balance  by  tho 
mortgagor,  and  to  issue  the  necessary  process  for  these  purposes.2  Hence 
the  aid  of  a  court  of  law  became  unnecessary,  after  the  party  had  com- 
menced his  action  in  equity,  and  could  not  be  resorted  to  unless 
authorized  by  the  court  of  chancery.3  The  same  principles  are  ap- 
plicable under  the  code,  and  a  single  action  will  enable  the  mortgagee 
to  foreclose  his  mortgage,  and  obtain  a  judgment  for  the  balance  of  the 
debt,  if  any,  against  any  party  who  is  liable  therefor.  For  though  these 
were  formerly  separate  causes  of  action,  the  one  equitable  and  the  other 
legal,  they  both  arise  out  of  the  same  transaction,  and  may  properly  be 

1  Lansing    v.   Goelet,   9   Cowen  346.  bigarre  v.  Bush,  4  J.  R.  480.    Perine  v. 

Spencer  v.  Harford,  4  Wend.  381.     Mor-  Dunn,  4  J.  Ch.  R.  140.     Globe  Ins.  Co. 

gan  v.  Plumb,  9  id.  286.    Lansing  v.  The  v.  Lansing,  5  Oowen  380. 

Albany  Ins.  Co.  Hopkins,  102.    Ludlow  9  2  R.  S.  191,  §§  151,  152.     Revbers' 

t.  Lansing,  id.  231.    Sedgwick   v.  Fish,  notes,  3  R.  S.  673. 

id.  5'.i4.     Perine  v.  Dunn,  3  J.  Ch.  R.  *  2  id.  191,  §  153.    M'Carty  v.  Graham, 

50$      Campbell  v.   Macomb,  4  id.  534.  8  Paige,  480.    The  Bank  of  Rochester  v. 

Kershaw  v.  Thompson,  id.  609.    Dela-  Emenon,  10  id.  115. 


Ch.  7-1  Order  of  Payment.  453 

united.1  And,  in  truth,  they  have  been  so  united  in  bills  of  foreclosure, 
since  the  adoption  of  the  Revised  Statutes  in  1830. 
v  The  mode  of  foreclosing  mortgages,  and  of  redeeming  mortgaged  prem- 
ises, is  regulated  in  most  of  the  states,  in  a  great  measure,  by  statute, 
and  it  is  not  proposed  to  collect  the  decisions  which  have  been  made  by 
their  courts  concerning  them.  The  foundation  of  the  jurisdiction  is  in  all 
cases  derived  from  the  English  practice. 

On  the  foreclosure  and  sale  of  mortgaged  premises,  and  in  the  distribu- 
tion of  the  surplus  money,  there  are  often  important  questions  as  to  the 
primary  fund  for  the  payment  of  the  mortgage  debt,  and  as  to  the  order 
in  which  lands  charged  with  various  liens  shall  be  sold,  and  the  avails 
distributed.  Courts  of  equity  settle  these  questions  upon  broad  and 
comprehensive  principles.  The  equities  of  successive  incumbrances  are 
often  adjusted  in  decrees  for  foreclosure  and  sale,  without  any  bill  to  mar- 
shal securities.  The  same  object  is  often  accomplished  by  prescribing 
the  order  of  sale,  or  directing  the  distribution  of  the  surplus,  after  the 
report  of  sale  has  been  confirmed. 

If  no  equitable  circumstances  intervene,  the  debt  is  considered  the 
principal,  and  the  mortgage  the  security  ;  and  consequently,  on  the  death 
of  the  mortgagor,  his  personal  representatives  are  bound,  as  between 
them  and  the  heir,  to  pay  off  the  mortgage.2  But  when  the  land  is  ex- 
pressly conveyed,  subject  to  a  mortgage  thereon,  the  land  is  the  primary 
fund,  as  between  grantor  and  grantee,  and  those  deriving  title  from  the 
grantee,  for  the  payment  of  the  mortgage  debt.3  So  the  purchaser  of  an 
equity  of  redemption,  under  a  junior  judgment,  or  mortgage,  takes  the 
land  subject  to  the  prior  mortgage,  and  the  land  becomes  the  primary 
fund  for  the  payment.4  By  purchasing  subject  to  the  prior  mortgage 
exprcssl}r,  he  is  presumed  to  bid  only  to  the  value  of  the  equity,  subject 
to  the  payment  of  the  prior  mortgage  thereon.  And  if  he  then  takes  an 
assignment  of  the  prior  bond  and  mortgage,  he  cannot  charge  the  mort- 
gagor, by  a  suit  on  the  bond,  until  he  has  exhausted  his  remedy  upon  the 
mortgage.5  On  the  same  principle,  when  a  mortgagor  sells  a  part  of  the 
land,  subject  to  the  whole  mortgage,  the  part  sold  is  primarily  liable  for 
the  mortgage  debt,  and  the  personal  estate  of  the  deceased  grantee  is  lia- 
ble only  for  the  deficiency.9     And  sc  when  tenants  in  common  mortgage 

1  Code,  §  1 07.  Allen,  10  Paige,   249.     Vanderkemp  v. 

■  2  Williams1  Ex.  1043.  Shelton,  11  id.  28. 

*  Jurael  v.  Jumel,  7  Paige,  591.  'Vanderkemp   v.  Shelton,  11    Paiga, 

*  Tice  v.  Anin,2  J.  Cll.  K.  125.   M'Kins-  28.     Mathews  v.  Aikin,  1  Comst.  595. 
try  v.  Curtis,  1€  Paige,  503.     Russell  v.  •  Oalsey  v.  Peed,  9  Paige,  44G. 


454  Trusts.  [Ch.  7 

for  a  joint  debt,  and  afterwards  make  partition,  each  half  is  chargeable 
primarily  with  one  half  of  the  debt  and  costs.' 

Bat  the  rights  and  equities  of  the  parties  are  sometimes  as  much 
affected  by  the  order  in  which  separate  incumbered  pieces  of  land  are 
sold;  as  by  the  determination  as  to  which  is  the  primary,  and  which  the 
auxiliary  fund.  Courts  of  equity,  while  they  will  preserve  the  rights 
of  the  creditor,  require  them  to  be  so  exercised  as  not  injuriously  to 
disturb  the  rights  and  equities  of  others.  Thus,  when  a  creditor  has  a 
lien  upon  several  parcels  of  land  for  the  payment  of  his  debt,  and  some 
of  the  lands  still  belong  to  the  person  who  in  equity  ought  to  pay  and 
discharge  the  debt,  and  other  parcels  have  been  sold  by  him,  the  landa 
still  belonging  to  such  person  are  in  equity  first  chargeable  with  the  pay- 
ment of  the  debt.  And  upon  the  principle  that  as  between  equal  equities, 
he  who  is  prior  in  time  is  strongest  in  right,  if  the  person  who  ought  to 
pay  the  debt  has  conveyed  different  parcels  of  the  land,  upon  which  it  is  a 
lien,  at  several  times  to  bona  fide  purchasers ;  as  between  such  purchasers, 
the  lands  are  chargeable  in  equity  in  the  inverse  order  of  their  alien- 
ation.2 That  is  to  say,  the  lands  last  sold  are  to  be  first  charged,  and  so 
on  in  successive  inverse  order. 

On  the  same  principle,  when  there  are  general  liens  upon  the  whole 
land,  and  subsequent  mortgages  on  the  parcels,  the  general  liens  are 
primarily  chargeable  on  the  parcels,  in  the  inverse  order  of  their  being 
mortgaged.3  In  like  manner,  when  mortgaged  premises  are  sold,  subse- 
quent to  the  date  of  the  mortgage,  to  different  purchasers,  such  parcels, 
upon  a  foreclosure  of  the  mortgage,  are  to  be  sold  in  the  inverse  order  of 
their  alienation,  according  to  the  equitable  rights  of  the  different  pur- 
chasers as  between  themselves.4 

This  principle  is  not  confined  to  the  original  alienations  of  the  mort- 
gagor, but  extends  to  conveyances  by  his  grantee,  where  he  conveys  with 
warranty.5  It  is  applicable  to  subsequent  incumbrances,  upon  different 
parcels  of  the  mortgaged  premises,  either  by  mortgage  or  judgment.6 

So  where  the  lands  are  mortgaged,  and  a  part  thereof  subsequently 
sold  by  the  mortgagor,  the  part  remaining  unsold  is  the  primary  fund  for 

1  Rathbone  v.  Clark,  9  Paige,  648.  3  Schryver  v.  Teller,  9  Paige,  173. 

2  Skeel  v.  Spraker,  8  Paige,  182.  Gill  4  Guion  v.  Knapp,  6  id.  35.  Snyder  v 
v.  Lyon,  I  J.  Ch.  R.  447.  Clowes  v.  Stafford,  11  id.  71.  The  K  Y.  Life  Ins. 
Dickinson,  5  id.  235.  Gouverneur  v.  and  T.  Co.  v.  Milnor,  1  Barb.  Cb.  P.  353. 
Lynch,  2  Paige,  300.     Guion  v.  Knapp,  Stuyvesant  v.  Hall,  2  id.  151. 

6  id.  35.     Stoney  v.  Shultz,  1  Hill's  Ch.        6  Guion  v.  Knapp,  6  Paige,  35. 

R.  600.    Rathbone   v.   Clark,   9  Paige,        6  Stuyvesant  v.  Ilall,  2  Barb.  Ch.  R 

648.    Schryver  v.  Teller,  id.  173.  151. 


Ch.  7.J  Chattel  Mortgages  and  Pledges.  455 

the  payment  of  the  mortgage  debt ;  and  if  different  parcels  are  sold,  they 
should  1  e  charged  with  the  debt  in  the  inverse  order  of  alienation.  In 
like  manner,  where  lands  are  contracted  to  be  sold,  and  the  purchaser  con- 
tracts to  sell  a  part  of  such  lands,  the  part  remaining  is  the  primary 
fund  for  the  payment  of  the  original  purchase  money  ;  and  if  the  original 
purchaser  transfers  different  interests,  they  are  chargeable  in  the  inverse 
order  of  alienation.1 

The  right  to  have  the  lands  which  have  been  sold  by  the  mortgagor, 
charged  in  the  inverse  order  of  their  alienation,  is  not  strictly  a  legal 
but  an  equitable  right ;  and  is  governed  by  those  equitable  principles 
upon  which  courts  of  equity  protect  the  rights  of  sureties,  or  those  who 
are  standing  in  the  situation  of  sureties.2  And  the  conscience  of  the 
party  who  holds  the  incumbrance  is  not  affected,  unless  he  is  informed 
of  the  existence  of  the  facts  upon  which  this  equitable  right  depends  ; 
or  he  has  a  sufficient  notice  of  the  probable  existence  of  the  right,  to 
make  it  his  duty  to  inquire,  for  the  purpose  of  ascertaining  whether  such 
equitable  right  does  in  fact  exist.3 

With  respect  to  the  surplus  money,  in  case  the  mortgaged  premises 
sell  for  more  than  enough  to  satisfy  the  amount  due  on  the  mortgage, 
the  mortgagor  or  his  grantees  are,  prima  facie,  entitled  to  it.4  The 
Incumbrances  subsequent  to  the  mortgage  under  which  the  sale  is  had, 
must  be  paid  off  in  the  order  of  time  in  which  their  respective  liens 
attached.5  And  though,  in  general,  the  court  is  not  bound  to  take  notice 
of  any  interest  acquired  by  purchasers,  in  the  subject  matter  of  the  suit, 
pending  the  suit,  yet  a  person  who  obtained  a  judgment  against  a  mort- 
gagor, pending  the  suit,  by  the  mortgagee  for  foreclosure,  and  prior  to 
the  decree,  was  allowed  to  redeem,  as  against  the  purchaser  at  the 
master's  sale,  acting  with  notice  of  the  lien  of  the  judgment  creditor,  and 
under  the  peculiar  circumstances  of  the  case.'  >*■ 

We  have  hitherto  treated  of  mortgages  of  real  estate  and  their  inci- 
dents.  As  there  may  be  trusts  with  respect  to  personal  property,  so 
also  there  may  be  mortgages  of  the  same.  The  mortgagee  in  such  case, 
is  in  equity  a  trustee  for  the  mortgagor.  Personal  property  may  also  be 
pledged  for  the  payment  of  debts.  A  mortgage  and  a  pledge  of  chattels 
are  in  some  respects  similar  to  each  other,  but  there  are  important  points 

1  Crafts  v.  Aepinwatt,  2  Comst.  289.  4  Franklin  v.  Van  Cott,  11  Paige,  129 

*  6  Paige,  42.     3  Barb.  Ch.  R.  158.  6  M'Kinstry  v.  Mervin,  3  J.  Ch.  R.  466. 

1  Id.  •  Cook  v.  Mancius,  id.  9G,  100 


456  Trusts.  [Ch.  7. 

with  respect  to  which  they  differ.  A  mortgage  of  chattels  is  a  transfer 
of  personal  property  upon  condition,  on  the  non-performance  of  which  the 
whole  title  vests  at  law  in  the  mortgagee,  in  the  same  manner  as  in 
mortgages  of  land.  But,  in  a  pledge,  a  special  property  only  passes  to 
the  pledgee,  with  a  right  of  possession,  the  general  property  remaining 
in  the  pledgor.  The  distinction  between  the  two  securities  is  pointed 
out  in  several  of  our  cases,  and  is  well  established.  A  mortgage  of  goods, 
say  ihe  court  in  an  early  case,  is  a  pledge  and  more ;  for  it  is  an  absolute 
pledge  to  become  an  absolute  interest,  if  not  redeemed  at  the  specified 
time.  After  the  condition  forfeited,  the  mortgagee  has  at  law  an  abso- 
lute interest  in  the  thing  mortgaged,  whereas  a  pawnee  has  but  a  special 
property  in  the  goods  to  detain  them  for  his  security.1 

Delivery  is  essential  to  the  validity  of  a  pledge.  When  no  time  ha3 
been  fixed  for  its  redemption,  the  pawnor  may  at  any  time  redeem,  and 
the  right  of  redemption  does  not  terminate  by  his  death,  but  survives  to 
his  personal  representatives  against  the  pawnee  and  his  representatives. 
The  pawnee  does  not  acquire  an  absolute  title,  simply  by  the  failure  of 
the  pawnor  to  pay  the  debt,  or  redeem  the  property  at  the  time  specified. 
His  interest  is  to  retain  the  property  for  his  security.  There  is  no 
forfeiture  till  the  pawnor's  rights  are  foreclosed.3 

The  pawnee  may,  by  calling  upon  the  pawnor  to  redeem,  and  his  refu- 
sal, vest  in  himself  the  absolute  property  in  the  pledge.  The  usual  course 
is,  on  default  of  payment,  to  sell,  on  reasonable  notice  to  redeem.4 

An  action  in  equity,  by  the  pawnor,  to  redeem  the  property  pledged, 
has  frequently  been  sustained  ;  and  it  is  presumed  that  an  action  to  fore- 
close may,  under  peculiar  circumstances,  be  maintained  by  the  pledgee.5 

It  is  settled,  also,  that  a  pledge  may  be  taken  as  a  security  for  future 
loans.  In  this  respect  it  stands  on  the  same  footing  as  a  mortgage  for 
future  advances,  which  we  have  already  considered,  and  which  is  as  appli- 
cable to  chattel  mortgages  as  to  mortgages  of  land.6 

While  delivery  is  said  to  be  essential  to  the  existence  of  a  pledge,  a 
mortgage  of  chattels  is  good  and  valid  between  the  parties  without  it. 

1  Brown  v.  Bement,  8  J.  R.  96,  98.  Wilson,  1  P.  Wms.  261.  Lockwood  v. 
Cortelou  v.  Lansing.  2  Cain.  Gas.  in  Er.    Ewer,  2  Atk.  803. 

200.    Barrow  v.  Paxton,  5  J.   R.   258.  6  Id. 

Jones  v.Smith,  2  Ves.jr.  378.  M'Lean  v.  6  Hendrick  v.  Robinson,  2  J.  Ch.  R. 

Walker,  10  J.  R.  471.  309.    Jones  v.  Smith,  2  Ves.  jr.  372.    De 

2  Cortelou  v.  Lansing,  2  Caines'  Cas.  in  Maimbray,  2  Yern.  698.  United  States 
Error,  200.  v.  Hoe,  3  Crancb,  73.     Shirras  v.  Caig, 

3  Brownell  v.  Hawkins,  4  Barb.  493.  7  id.  34.     Brinkerboff  v.  Marvin,  6  J.  Cb. 

4  Cortelou  v.  Lansing,  supra.  Hart  R.  429.  Jarvis  v.  Rogers,  15  Mass.  389. 
/.  Ten  Ejck,  2  J.  Cb.  R.  100.    Tucker  v.  Otis  v.  Sill,  8  Barb.  102. 


Oh.  7. J  Chattel  Mortgages  and  Pledges.  457 

Possession  continuing  in  the  mortgagor  is  not  inconsistent  with  the  instru- 
ment at  common  law,  and  was  treated  merely  as  a  badge  of  fraud.1 

A  chattel  mortgage  transfers  to  the  mortgagee  the  whole  legal  title  to 
the  thing  mortgaged,  subject  only  to  be  defeated  by  performance  of  the 
condition.2  And  upon  failure  to  perform  the  condition,  the  mortgagee 
acquires  an  absolute  title  to  the  chattel.3  And,  without  a  foreclosure,  the 
property  may  be  levied  upon  by  virtue  of  an  execution  against  the  mort- 
gagee.4 

And  the  mortgagor,  after  the  expiration  of  the  day  for  payment,  looses 
all  legal  right  to  the  property,  and  cannot  maintain  an  action  for  it,  if  it 
be  wrongfully  taken.  And  even  when  the  mortgage  contains  a  clause, 
authorizing  the  mortgagee,  upon  default  of  payment  of  the  debt,  at  the 
time  agreed  on,  to  sell  the  property  at  auction  or  private  sale,  the  title 
still  vests  in  the  mortgagee,  absolutely,  on  failing  to  perform  the  condition, 
without  any  sale  being  made.5  And  he  may  take  possession  without  any 
further  act.6 

A  chattel  mortgage  may  contain  a  stipulation  authorizing  the  mort- 
gagor to  retain  possession  until  the  time  of  payment  has  arrived.  And 
it  may,  in  such  case,  empower  the  mortgagee,  in  case  of  any  attempt  of 
the  mortgagor  to  remove  or  dispose  of  the  property,  to  seize  the  same  and 
sell  it,  and  appropriate  enough  of  the  proceeds  to  pay  the  debt ;  and  this, 
whether  the  debt  has  become  due  or  not,  by  the  terms  of  the  mortgage.7 

It  is  a  legitimate  inference,  from  the  principles  before  stated,  that  after 
the  condition  is  broken,  and  the  title  of  the  mortgagee  has  become  abso- 
lute at  law,  no  subsequent  tender  by  the  mortgagor  to  the  mortgagee,  of 
the  moneys  secured  thereby,  will  operate  to  reinvest  the  title  in  the 
mortgagor.8 

The  rigor  of  the  common  law  rule  has,  in  relation  to  chattel  mortgages, 
as  well  as  mortgages  of  lands,  been  mitigated.  In  relation  to  both,  the 
mortgage  is  a  security  for  a  debt,  and  it  is  the  business  of  courts  of 
equity  to  relieve  against  the  forfeiture  in  one  case  as  well  as  the  other, 
on  payment  of  the  debt,  interest  and  costs.  This  doctrine  is  now  well 
settled  in  this  state,  and  probably  elsewhere.     The  mortgagor  may  bring 

1  Barrow  v.  Paxton,  5  J.  R.  2G1.   Lewis  *  Ferguson  v.  Lee,  9  Wend.  25S. 

v.  Stevenson,  2  Doll's  S.  C.  R.  G3.  6  P.urdick  v.  McVanner,  2  Denio,  171. 

a  Butler  v.  Miller,  1  Comst.  496.  Case  v.  Boughton,  11  Wend.  109. 

•  Brown  v.  Bement,  8  J.  R.  96.     Ack-  6  Id.     Langdon  v.  Buel,  9  Wend.  80. 

ley  v.  Finch,  7  Cowen,  290.     Diwer  v.  7  Puissell  v.  Butterfield,  21  id.  300. 

McLaughlin,  2  Wend.  5%.     Langdon   v.  '  Patchin  v.  Pierce,  12  id.  61. 
Reed,  9  id.  80.     Patchin  v.  Pierce,  12  id. 
II.     Fuller  v.  Acker,  1  Ili'l,  «$. 

Eq.  J uk.  58 


458  Trusts.  {Ch.  7 

an  action  to  redeem,  and  the  mortgagee  may  have  a  corresponding  one  tc 
foreclose,  though  in  general  a  sale  of  the  property,  as  in  case  of  a  pledge 
upon  reasonable  notice  to  the  mortgagor  to  redeem,  is  equally  effective  with- 
out a  resort  to  judicial  proceedings.1  There  has  long  been  a  tendency  in 
our  courts,  to  assimilate  the  equitable  rights  of  mortgagor  and  mortgagee 
of  chattels  to  the  corresponding  rights  of  the  parties  to  mortgages  of  real 
estate.  The  right  of  redemption  and  of  foreclosure,  in  case  of  mortgages 
of  chattels,  has  been  repeatedly  recognized  by  the  most  eminent  judges 
and  in  the  highest  courts.2 

A  pledge,  and  a  mortgage  of  personal  property,  are  both  good  without 
being  evidenced  by  any  written  contract.3  At  common  law,  they  were 
created  by  delivery  of  the  property,  though,  with  respect  to  a  mortgage,  it 
remained  still  good  between  the  parties  and  purchasers  with  notice,  though 
not  followed  by  a  continued  change  of  possession.  The  possession  of  the 
mortgagor  was  not  esteemed  inconsistent  with  the  nature  of  the  contract. 
The  provisions  of  the  Revised  Statutes,  and  of  the  act  of  1833,  requiring 
mortgages  of  personal  property  to  be  filed  in  the  office  of  the  town  clerk/ 
are  for  the  benefit  of  creditors,  subsequent  purchasers  and  mortgagees 
in  good  faith.  They  have  no  application  to  their  validity  between  the 
parties  and  those  who  purchase  with  notice  ;5  nor  to  the  remedy  in  equi- 
ty by  mortgagor  or  mortgagee.  This  branch  of  the  subject  was  sufficiently 
considered. under  the  head  of  fraud.6 

When  a  pledge  is  not  capable  of  manual  delivery,  as  shares  of  stock 
in  an  incorporated  company,  a  pledge  may  be  created  by  a  written  trans- 
fer ;  and  the  transaction  may  be  a  pledge,  instead  of  a  mortgage,  although 
the  legal  title  passes  to  the  creditor.7 

Whether  the  transfer  of  the  shares  of  stock  of  a  corporation  be  a 
pledge  or  a  mortgage,  depends,  in  doubtful  cases,  on  the  circumstances. 
The  general  property  which  the  pledgor  is  said  usually  to  retain,  is  noth- 
ing more  than  a  legal  right  to  the  restoration  of  the  things  pledged  on 
payment  of  the  debt.     Where  the  plaintiff  transferred  to  the  defendants, 

1  Patchin   v.    Pierce,    12    "Wend.    61.  3  Ferguson  v.  The  Union  Furnace  Co. 
Charter  v.  Stevens,  3  Denio,  33.  Hart  v.  9  Wend.  345.    Hall  v.  Tuttle,  8  id.  375. 
Ten  Eyck,  2  J.  Ch.  R.  100.    Lansing  v.  4  2  R.  S.  136,  §  5,  p.  137,  §  1.    Laws  ot 
Goelet,  9  Cowen,  372,  per  Jones,  Ch.  1833,  p.  402. 

2  Huntington  v.  Mather,  2  Barb.  S.  C.  6  Sanger  v.  Eastwood,  19  Wend.  514. 
R.  538.    Mattison   v.   Baucus,  1  Cornst.  Gregory  v.  Thomas,  20  id.  17. 

29G.    March  v.  Lawrence,  4  Cowen,  467.        e  See  ante,  241,  etseq. 

Otis  v.  Wood,  3  Wend.  500.    Baily  v.        7  Wilson  v.  Little,  2  Comst.  443. 

Burton,  8  Wend.  347-8.     Id.  375,  and 

cases  under  preceding  note. 


Ch.  T.J  Hypothecations.  459 

on  the  books  of  the  corporation,  fifty  shares  of  the  stock  in  the  New- 
York  and  Erie  Railroad  Company,  by  an  instrument  al  solute  in  its  terms ; 
and  at  the  same  time  gave  to  the  defendants  his  note  for  $2000  borrowed 
money,  and  in  the  note  it  was  stated  that  the  stock  was  deposited  as  col- 
lateral security,  it  was  held  that  the  transaction  was  a  pledge,  and  not  a 
mortgage  of  the  stock.1  The  pledgee  holds  the  property  in  trust  as  a 
security ;  if,  therefore,  he  sells  it  without  authority,  it  is  a  violation  of 
his  trust,  although  he  afterwards  purchases  other  articles  of  the  same 
kind  and  value,  to  be  returned  to  the  pledgor  ;  unless  there  is  some  agree- 
ment, either  express  or  implied,  between  the  parties,  that  he  shall  be 
permitted  to  do  so.2 

The  difference  between  a  pledge  and  a  hypothecation  is,  that,  in  the 
former,  possession  in  the  pledgee  is  essential,  and,  in  the  latter,  the  trans- 
action is  valid,  though  the  possession  remains  in  the  original  owner.  It 
is  defined  by  Story  to  be  a  pledge  without  possession  by  the  pledgee.3 
And  he  says,  there  are  few  cases,  in  our  law,  where  an  hypothecation,  in 
the  strict  sense  of  the  Roman  law,  exists.  What  is  called  an  hypotheca- 
tion of  shares  in  incorporated  companies,  is  usually  effected  by  delivery 
of  the  certificate  of  the  company  for  the  shares  given  to  the  borrower, 
with  a  power  of  attorney  to  the  lender  to  make  the  actual  transfer  on 
the  books  of  the  company.  The  actual  transfer  is  frequently  postponed 
or  omitted,  but  the  transfer,  or  at  least  notice  to  the  company,  is  deemed 
requisite  to  the  complete  efficiency  of  the  security.4  But  the  cases  already 
cited  show  that  this  security  is  a  pledge,  and  subject  to  all  the  incidents 
of  that  security. 


SECTION  III. 

OF    ASSIGNMENTS,    LEGAL   AND    EQUITABLE. 

Both  real  and  personal  property,  as  well  as  choses  in  action,  may  be 
and  often  are,  assigned  in  special  trust.  The  most  usual  object  of  such 
assignments  is  the  distribution  of  the  property  of  the  assignor  among 

1  Wilson  v.  Little,  2  Corast.  443.  Reeves        a  Dykers  v.  Allen,  7  Hill,  498. 
v.  Capper,  5  Ding.  N.  C.  142.     Allen  v.        s  Story  on  Bailment,  §  288. 
Dykers,  3  Hill,  593.    7  id.  498  ;  and  see        *  2  Kent's  Cora.  577,  note. 
Huntington  v.  Mather,  2  Barb.  S.  C.  R. 
538,  contra. 


460  Trusts.  |Ch.  7 

his  creditors,  towards  the  payment  and  satisfaction  of  their  debts.  This 
species  of  trust  is  still  upheld,  by  the  Revised  Statutes,  even  with  respect 
to  the  real  estate  of  the  assignor  ;  and  it  remains,  as  at  common  law. 
with  respect  to  personal  property.1  Under  what  circumstances  assign- 
ments may  be  fraudulent  as  against  creditors,  and  in  what  manner  couits 
of  equity  relieve  against  them  for  that  cause,  have  been  considered  under 
the  head  of  fraud.8  We  propose  now  to  consider  the  subject  under  a  dif- 
ferent aspect,  in  reference  more  particularly  to  what  may  be  assigned, 
and  to  the  execution  of  the  trusts  upon  which  they  are  made. 

At  common  law,  the  assignment  of  a  chose  in  action  could  not  be  made 
ao  as  to  vest  in  the  assignee  a  right  of  action  in  his  own  name.3  But 
in  England,  the  king,  by  his  prerogative,  was  an  exception  to  this  rule, 
and  his  assignee  might  sue  in  his  own  name  ;  and  in  this  country  the 
same  prerogative  is  enjoyed  by  the  government,  as  succeeding  to  all  the 
rights  of  the  British  crown.4  But  courts  of  equity  always  protected 
the  rights  of  assignees,  and  courts  of  law,  in  modern  times,  also  take 
notice  of,  and  protect  such  rights  against  all  persons  having  either  express 
or  implied  notice  of  the  assignment.5  A  knowledge  of  such  facts  and 
circumstances  as  are  sufficient  to  put  the  party  on  inquiry  is  equivalent 
to  actual  notice;  and  he  who  disregards  them,  acts  contrary  to  good  faith, 
and  at  his  peril.6  The  general  rule  before  the  code  was,  that  all  choses 
in  action  might  be  assigned  in  equity,  and  the  assignee  had  an  equitable 
right  which  he  might  in  a  court  of  law  enforce  in  the  name  of  the  assignor.7 
But  now,  by  the  code,  the  rule  in  this  state  is  the  same  in  all  courts,  and 
every  action  arising  on  contract  is  required  to  be  prosecuted  in  the  name 
of  the  real  party  in  interest,  except  actions  by  executors,  administrators, 
and  trustees  of  an  express  trust,  who  are  authorized  by  statute  to  sue, 
without  joining  with  them  the  persons  for  whose  benefit  the  action  is  pros- 
ecuted.8 But  the  principles  which  regulate  assignments  are  the  same  as 
before.     The  code  operates  merely  on  the  form  of  the  remedy. 

As  a  general  rule,  therefore,  all  choses  in  action,  such  as  bonds,  mort- 
gages, notes,  judgments,  debts,  contracts,  agreements,  as  well  relating 
to  personal  as  real  estate,  are  assignable,  and  will  pass  to  the  assignee 

1  1  R.  S.  728,  §  55,  subd.  1.     Kane  v.  ten  v.  Graves,  4  J.  E.  403.     Littlefield  v. 

Gott,  24  Wend.  661,  per  Cowen,  J.  Storey,  8  id.  425.    Anderson  v. Van  Allen, 

5  Ante,  p.  241.  12  id.  343.     Briggs  v.  Dorr,  19   id.  95. 

3  Bacon's  Abr.    tit.    Assignment    A,  Wilkins  v.  Batterman,  4  Barb.  47. 
and  notes.  6  Id. 

4  U.  States  v.  Buford,  3  Peters,  30.  7  Wheeler  v.  Wheeler,  9  Cowen,   34 
*  Johnson  v.  Bloodgood,  1  J.   0.  51.    and  preceding  cases. 

Tardell  v.  Eden,  ?■  id.  121.     Van  Yecb-        6  Code,  S3  111,  113. 


Ch.  7.J  Legal  Assignments.  461 

a,  right  of  action,  in  the  name  of  the  assignee,  by  force  of  the  code; 
against  all  parties  liable  to  any  action.1  But  there  are  some  exceptions  to  the 
above  rule,  even  in  equity,  The  beneficial  interest  of  a  cestui  que  trust 
in  rents  and  profits  is,  in  certain  cases,  inalienable  by  statute.2  And  pen* 
sions  granted  by  the  general  government  for  revolutionary  services  are 
forbidden  to  be  sold,  assigned  or  mortgaged.3  In  one  case  it  was  said  by 
a  learned  judge,  that  a  simple  expectancy  in  which  the  assignor  has  no 
interest,  and  which  is  unpurchasable,  can  neither  be  assigned,  nor  would 
a  contract  for  future  assignment  be  valid.  A  mere  jus  precarium,  a 
right  resting  in  curtesy,  is  no  more  a  matter  of  bargain  than  the  virtue 
from  which  it  emanates.4  But  the  extra  allowance  promised  by  the  legis- 
lature to  canal  contractors,  by  the  act  of  183G,5  r/>  the  completion  of  their  '^^ 
jobs,  in  consequence  of  the  rise  in  prices  and  the  value  of  forage  subse- 
quent to  entering  into  their  contracts,  was  held  by  the  court  of  errors,  by 
the  equity  of  the  statute,  to  belong  to  the  assignee  of  the  contract  by 
whom  the  work  was  done.6  The  allowance  was  not  esteemed  a  mere  jrra- 
tuity,  but  a  just  and  equitable  remuneration,  made  necessary  by  circum- 
stances not  within  the  contemplation  of  either  of  the  parties  when  the 
contract  was  made.  But  a  bare  possibility  of  an  uncertain  interest  is 
not  assignable.7 

Under  the  provisions  of  the  Revised  Statutes,  a  mere  possibility  coupled 
with  an  interest  is  capable  of  being  conveyed  or  assigned  at  law,  as  well 
as  in  equity,  in  the  same  manner  as  an  estate  or  interest  in  possession.8 
And,  independently  of  the  Revised  Statutes,  any  interest  whatever  in  per- 
sonal property,  or  a  mere  possibility  coupled  with  an  interest  in  real  estate, 
was  assignable  in  equity.9 

A  life  estate  charged  with  the  support  of  infants  is  alienable,  subject 
to  the  charge.10  A  claim  against  a  foreign  government  for  an  illegal  cap- 
ture is  assignable  in  equity.11  An  assignment  of  the  services  of  an  in- 
dented apprentice,  though  not  binding  on  him,  is  good  between  me 
parties.12 

1  Bao.  Abr.  tit.  Assignment.  '  Touchstone,  239.    Mitchell  v.  Wins- 

MR.S.  730,  §  63.  Hone  v.  Van  Schaick,  low,  2  Story's  R.  630. 

7  Paige,  221,  234.    Aff.  20  Wend.  564.  8  1  R.  S.  725,  §  35.    Lawrence  v.  Bay 

3  Laws  of  U.  S.  vol.  6,  274,  §  4,  act  of  ard,  7  Paige,  76. 

1818.  '  Id.     Whitfield  v.  Faucet,  1  Yes.  sen, 

4  Munsell  v.   Lewis,  4  Hill,  642,  per    391.     Wright  v.  Wright,  id.  411. 
Oowen,  J.  ,0  Emmons  v.  Cairn,  3  Barb.   S.  C.  R. 

*  Laws  of  1836,  p.  201.  243. 

'  Munsell  v.  Lewis,  2  Denio,  224,  over-        "Couch  v.  Delaplain,  2  Comst.  397 
ruling  S  C.  in  4  Hill,  642.  Milnor  v.  Metz,  16  Peters.  221. 

"  Guilderland  v.  Knox,  5  Cowen,  3GS. 


462  Trust.  [Oh.  7. 

The  provisions  of  the  code  as  to  bringing  the  action  in  the  name  of  the 
'  party  in  interest,  -when  he  is  the  assignee  of  a  chose  in  action,  extends 
only  to  the  assignment  of  things  in  action  arising  out  of  contract.1  If  the 
cause  of  action  originate  in  tort,  the  former  rule  prevails ;  and  though 
equity  will  recognize  and  protect  the  rights  of  the  assignee,  yet  the  action 
must  be  brought  in  the  name  of  the  assignor.  And  hence  a  right  of  action 
for  the  conversion  of  personal  property,2  or  for  a  personal  tort,3  is  not  as- 
signable, so  as  to  give  the  assignee  a  right  of  action  in  his  own  name.  But 
though,  in  these  cases,  the  assignee  cannot  sue  in  his  own  name  by  virtue 
of  the  assignment,  yet,  if  the  party  make  an  express  promise  to  pay  the 
assignee,  it  seems  the  latter  can  maintain  an  action  upon  that  promise.4 

With  regard  to  the  instrument  by  which  an  assignment  may  be  made, 
it  has  been  held  that  delivery,  for  a  valuable  consideration,  of  a.  chose  in 
action,  without  writing,  is  a  sufficient  transfer.5  And  thus  a  judgment  of 
a  court  of  record,  a  bond  or  covenant,  and  a  mortgage  of  real  estate,  may 
all  be  assigned  orally,  by  mere  delivery,  without  any  instrument  in  writ- 
in"1  declaring  the  transfer.6  The  assignment  of  a  debt  necessarily  car- 
ries with  it,  as  an  incident,  a  collateral  mortgage,7  by  which  it  is  secured. 
So  an  assignment  of  a  judgment  necessarily  carries  with  it  the  debt,  and 
any  mortgage  given  to  secure  it ;  and  if  the  assignment  be  of  a  part  of 
the  debt,  or  judgment,  it  carries  along  with  it  a  similar  part  of  the  mort- 
gage." An  assignment  of  shares  of  stock  in  an  incorporated  company 
passes  the  growing  profits  of  such  shares.9 

As  a  specialty  may  thus  be  assigned  by  parol,  it  is  scarcely  necessary 
to  add  that  a  written  assignment,  without  seal,  is  equally  effective  to 
pass  the  interest  as  an  assignment  under  seal.10  The  foregoing  rules 
apply  also  to  the  assignment  of  chattel  mortgages.1 ' 

There  are  cases  in  which  something  short  of  an  actual  transfer  and 
delivery  of  a  chose  in  action,  will  operate  as  an  equitable  assignment  of 
the  whole,  or  of  some  part  of  it.     No  particular  form  of  words  is  neces- 

1  Code,  §  111.  6  Ford  v.  Stuart,  19  J.  K.  342.     Brigga 

2  Gardner  v.  Adams?,  12  Wend.  297.  v.  Dorr,  id.  95.     Dawson  v.  Cole,  16  id. 

3  The  People  v.  Tioga  Com.  Pleas,  19  51.     Pvunyon  v.  Mersereau,  11  id.  531. 
Wend.  73.  7  Jackson  v.  Blodgett,  5  Co  wen,  202. 

4  ComptoH  v.  Jones,  4  Cowen,  73.   De        8  Pattison  v.  Hull,  9  id.  747. 

Forest  v.  Frary,  6  id,  151.  Dubois  v.  9  Kane  v.  Bloodgood,  7  J.  Ch.  R.  108. 
Doubleday,  9  Wend.  317.  Jessel  v.  Will.  10  Ford  v.  Stuart,  19  J.  K.  95.  Daw- 
Ins.  Co.  3  Hill,  88.  son  v.  Coles,  16  id.  51. 

6  Green  v.  Hart,  1  J.  Pt.  5S0.     Canfield  "  Langdon  v.  Buel,  6  Wend.  80. 
v.  Munger,  12  id.  346.     Prescot  v.  Hull, 
17  id.  284. 


Oh.  7-J  Equitable  Assignments.  463 

sary  for  this  purpose.  Any  language  which  indicates  a  clear  intention 
to  appropriate  the  fund,  will  effectuate  the  object.1  Thus  it  has  been 
hell,  that  an  order  to  pay  a  debt  out  of  a  particular  fund  belonging  to 
the  debtor  is  an  equitable  assignment  of  the  fund  pro  tanto,  and  gives 
the  creditor  who  receives  the  order  a  specific  equitable  lien  upon  such 
fund.2  This  was  in  conformity  to  the  doctrine  of  Lord  Thurlow,  who 
held  the  same  way  in  a  case  in  which  the  order  had  not  been  accepted. 
His  lordship  thought  that  the  giving  the  order,  though  by  a  man  in 
failing  circumstances  and  for  a  forgone  consideration,  worked  a  transfer 
of  the  fund  pro  tanto.*  In  like  manner,  the  order  of  a  landlord  on  his 
tenant,  directing  him  to  pay  to  the  person  therein  named,  the  accruing 
rents  on  certain  leases,  and  which  order  is  founded  on  a  good  considera 
tion,  is  an  equitable  assignment  of  the  rent,  and  the  tenant  is  bound,  on 
receiving  notice  of  it,  to  pay  the  rent  accordingly,  whether  he  accepted 
the  order  or  not.4  So  a  covenant  to  pay  over  one  half  of  any  recovery 
that  shall  be  had  against  an  insurance  company,  in  an  action  for  a  loss  of 
a  cargo  by  illegal  capture,  carries  one  half  of  the  demand,  and  extends  to 
a  compensation  for  the  capture  awarded  under  a  treaty.5 

There  is  a  distinction  between  an  order  drawn  on  a  general  or  particu- 
lar fund  for  the  whole  of  it,  and  an  order  drawn  only  for  a  part.  In  the 
former  case  it  amounts  to  an  equitable  assignment  of  the  fund,  after 
notice  to  the  drawee,  and  in  the  latter  it  does  not,  unless  the  drawee  con- 
sent to  the  appropriation  by  the  acceptance  of  the  draft;  or  an  obliga- 
to  accept  may  be  fairly  implied  from  the  custom  of  trade,  or  the 
course  of  business  between  the  parties,  as  a  part  of  their  contract.6  The 
n  is,  that  a  creditor  shall  not  be  permitted  to  split  up  a  single  cause 
of  action  into  many  actions,  without  the  assent  of  his  debtor,  since  it  may 
subject  him  to  many  embarrassments  and  responsibilities  not  contem- 
plated in  his  original  contract.7 

This  question  did  not  arise  in  Pattison  v.  Hull,  (supra.)  because  the  bill 
was  taken  as  confessed  against  the  mortgagors,  and  they  must  be  pre- 
sumed to  have  acquiesced  in  the  appropriation  of  the  fund  by  the  mort- 
gagee ;  and,  moreover,  as  all  the  persons  interested  in  the  fund  were  par- 

'  Dickerson  v.  Philips,  1  Barb.  S.  C.  R,  5  Wood  v.  Young,  5  "Wend.  620. 

453.  •  Mandeville  v.  Welch,  5  Wheat.  286 

'  Bradley  v.  Root,  5  Paige,  632.  Tiernan  v.  Jackson,  5  Peters.  580.     Cow- 

*  Yeates  v.  Groves,  1  Ves.  jr.  280.  perthwaite  v.  S.v  Afield,  1  Sand.  S.  C.  R, 

4  Morton  v.  Naylor,  1  Hill,  583.    Ex  450. 

parte  Alderson,  1  Mad.  R.  39.    Lett  v.  7  Id. 
Morris,  4  Sim.  607.     Clark  v.  Mauran, 
3  Paige,  37::. 


464  Trusts.  [Ch.  7 

ties  to  the  bill,  it  was  immaterial  to  the  mortgagors  whether  the  monej 
was  paid  to  the  mortgagees  or  to  their  assigns.  Nor  did  it  arise  in  Brad- 
ley v.  Root,  (supra,)  because  the  assignment  was  of  the  whole  contract  then 
remaining  unexecuted,  which  consequently  carried  with  it  a  specific  lien 
upon  the  moneys  thereafter  to  be  received  for  the  performance  of  the  con- 
tract. Nor  did  it  arise  in  Yeates  v.  Groves,  (supra,)  before  Lord  Thurlow, 
for  in  that  case  the  debtor  assented  to  an  assignment  of  a  part  of  the  de- 
mand. And  in  Morton  v.  Naylor,  (supra,)  there  was  a  parol  acceptance  by 
the  tenant  of  the  order,  which  amounted  to  his  assent  to  a  partial  appro 
priation  of  the  rent.  The  distinction  may,  indeed,  be  said  to  be  recog- 
nized by  the  New- York  cases,  and  it  certainly  is  not  repudiated  by  them.1 

In  order  to  constitute  an  equitable  assignment,  by  a  debtor  to  his  cred- 
itor, of  a  sura  due  to  the  debtor  from  a  third  person,  there  must  not  only 
be  an  agreement  to  pay  the  creditor  out  of  the  particular  fund,  but  an 
appropriation  of  the  fund,  either  by  giving  an  order  upon  it,  or  by  trans- 
ferring it  in  such  a  manner  that  the  holder  is  authorized  to  pay  it  to  tl.e 
creditor  directly,  without  the  further  intervention  of  the  debtor.'2 

Upon  this  principle  the  court  of  errors  held  that  a  covenant  to  pay  cer- 
tain debts  out  of  a  designated  fund,  when  the  same  should  be  received  ly 
the  debtor,  did  not  give  the  creditor  a  specific  lien  on  the  fund  ;  but  was 
a  mere  personal  covenant.3  The  ground  of  the  decision  was  that  there 
was  no  assignment,  no  mortgage  or  pledge,  no  order  or  other  specific  ap- 
propriation of  the  funds,  but  a  mere  covenant  to  pay  them  over  on  their 
being  obtained  by  the  covenantor.4  This  created  merely  a  personal  ob- 
ligation and  not  a  specific  lien  or  appropriation.  And  though  the  correct- 
ness of  the  doctrine  was  questioned  by  the  chancellor  in  subsequent  cases,5 
yet  it  has  not  been  overruled,  but  in  truth  approved  in  a  later  case,  and 
is  believed  to  be  in  strict  conformity  to  the  current  of  authorities.6 

If  there  be  no  provision  in  an  assignment  for  the  benefit  of  creditors, 
that  the  latter  can  take  no  benefit  under  it,  unless  they  signify  their 
assent  by  executing  it  as  parties,  it  will  be  sufficient  if  they  have  notice 
of  the  trust  in  their  favor,  and  assent  to  it.  And  if  no  affirmative  act  be 
exacted  from  them,  their  assent  will  be  presumed.7     Where  an  express 

1  Oowperthwaite  v.  Sheffield,  1  Sand.  "  Per  Cowen,  in  18  Wend.  334.     Wil- 

S.  C.  E.  450,  451.     Peyton  v.  Haltett,  1  Hams  v.  Everett,  14  East,  582,  £95,  596. 

Caines'  R.  363.    M'Menomy  v.  Ferrers,  6  Hawley  v.  Ross,  7  Paige,  103.    Rich 

3  J.  R.  72.  ardson  v.  Rust,  9  id.  243. 

3  Iloyt  v.  Story,  3  Barb.  S.  0.  R.  262.  B  Hoyt  v.  Story,  3  Barb.  S.  C.  R.  265. 

Burn  v.  Carvilho,  4  Myl.  &  Craig,  690.  7  Garrard  v.  Lauderdale,  3  Sim.  1.  Eg- 

Malcolm  v.  Scott,  3  Hare,  39.  bert  v.  Wood,  3  Paige,  517.     New  Eng- 

8  Rogers  v.  Hosack,  18  Wend.  319;  re-  land  Bank  v.  Lewis,  8  Pick.  113.    NicoU 

versing  S.  0.,  6  Paige,  415.  v.  Mumford,  4  J.  Ch.  R.  522. 


Ch.  T.J  Delivery  ok  Assignments.  4i55 

trust  is  created  for  the  benefit  of  creditors,  -without  any  authority  from 
the  trustee  to  give  a  preference  to  any,  it  is,  both  at  law  and  in  equity, 
a  trust  for  each  of  the  creditors  ratably.  And  even  in  the  case  of  an 
implied  trust,  -where  one  of  the  creditors  comes  into  a  court  of  equity  to 
enforce  the  performance  of  the  trust,  except  in  those  cases  where  he  has 
acquired  a  specific  lien  by  his  superior  vigilance,  or  where  he  is  entitled 
to  a  legal  preference,  the  court  will  act  upon  its  favorite  maxim  that  equal- 
ity is  equity.1  Where  the  assignment  is  to  a  trustee  for  the  benefit  of 
creditors,  the  assent  of  the  latter  is  not  in  general  necessary  to  the  valid- 
ity of  the  assignment.  The  legal  estate  vests  in  the  trustee,  and  equity 
will  compel  the  execution  of  the  trust  for  the  benefit  of  the  creditors, 
though  they  be  not  at  the  time  assenting,  and  parties  to  the  conveyance.2 

If  an  assignment  be  made  to  a  trustee  by  a  debtor,  for  the  benefit  of 
creditors,  the  title  to  the  assigned  property  does  not  vest  in  the  trustee 
until  his  acceptance  of  the  trust.  If  therefore  an  execution  be  delivered 
against  the  debtor,  subsequent  to  the  execution  of  the  assignment,  but 
before  its  acceptance  by  the  trustee,  the  execution  acquires  the  prefer- 
ence.3 Delivery  of  a  deed  is  essential  to  its  validity,  and  this  implies  an 
acceptance  by  the  grantee.''  And  when  the  grantee  derives  no  benefit 
from  the  deed,  but  i3  subjected  to  a  duty,  or  the  performance  of  a  trust, 
there  can  be  no  presumption  of  his  acceptance,  as  there  may  be,  when  its 
provisions  are  beneficial  to  him.5 

A  deed  may  be  delivered  to  a  stranger  for  the  grantee  named  therein, 
without  any  special  authority  from  the  grantee  to  receive  it  for  him. 
And  if  the  grantee  assents  to  it  afterwards,  the  deed  is  valid  from  the 
time  of  the  original  delivery.  Omnis  ratihabitio  retrotrahitur  et  man- 
dato  priori  eequiparatur.  (Broom's  Max.  676.)  It  is  upon  this  princi- 
ple that  it  has  frequently  been  held,  that  a  delivery  of  a  deed  to  the 
proper  recording  officer  to  be  recorded,  if  intended  to  vest  the  title  imme- 
diately or  absolutely  in  the  grantee,  either  as  a  trustee  or  otherwise,  is 
a  valid  delivery ;  if  not  afterwards  dissented  from  by  the  grantee.6 

An  assignment  for  the  benefit  of  preferred  creditors  is  valid,  though 
their  assent  is  not  given  at  the  time  of  its  execution,  if  they  subse- 
quently assent  in  terms,  or  by  actually  receive  a  benefit  under  it.  And 
it   makes   no  difference  whether   the   assignment   be   to   a  trustee   for 


Egbert  v.  Wood,  3  Paige,  520.  6  Jackson  v.  Bodle,  20  J.  R.  184. 

■  Nicoll  v.  Mumford,  4  J.  Ch.  R.  529.  •  The  Lady  Superior  v.  M'Xamara.  3 

1  Crosby   v.   Hillyer,   24   Weud.   280.  Barb.  Ch.  R.  378.     Tompkins  v.  Wheeler. 

Jackson  v.  Phipps,  12  J.  R.  418.  10  Peters'  R.  106, 119.     Ingram  v.  Porter, 


Id.  4  M'Cord's  R.  198. 

Ey.  Juu.  50 


*66  Trusts.  |0h.  t 

the  benefit  of  the  creditors,  or  be  made  directly  to  the  latter.  Their 
acceptance  of  the  grant  will  in  general  be  presumed  from  the  beneficial 
nature  of  it.1  The  assignment  will  be  deemed  to  take  effect  from  the 
moment  of  its  execution ;  and  if  there  be  more  than  one  trustee,  the  prop 
erty  will  vest  in  such  as  assent  to  the  assignment,  and  the  object  of  the 
assignment  will  not  be  defeated  because  a  portion  of  the  trustees  refusG 
their  assent. 

That  a  debtor  in  failing  circumstances  may,  by  an  assignment  of  his 
property  in  trust,  give  preference  to  one  class  of  creditors  over  another, 
is  not  doubted  at  this  day.  If  he  honestly  devotes  all  his  property  to 
the  payment  of  his  debts,  no  creditor  has  a  right  to  complain.2  The 
trusts  contained  in  this  class  of  assignments  are  the  proper  objects  of 
equity  jurisdiction.  If,  indeed,  they  are  impeached  as  fraudulent,  a 
court  of  law  can,  in  an  action  between  a  purchaser  at  a  sheriff's  sale  on 
an  execution  against  the  fraudulent  assignor,  and  the  trustee  or  other 
party  claiming  under  the  assignment,  often  test  the  fairness  and  validity 
of  the  instrument.  But  though  courts  of  law,  where  the  questions  can 
be  properly  presented,  have  a  concurrent  jurisdiction  with  courts  of 
equity  in  all  matters  of  fraud,  yet  the  nature  of  the  questions  arising 
on  the  trusts,  in  such  assignments,  often  places  the  remedy  beyond  the 
reach  of  those  courts.  The  relief  sought  is  not  necessarily  to  set  aside 
the  assignment  as  fraudulent  and  void,  though  it  is  often  invoked  for 
that  purpose,  The  aid  of  a  court  of  equity  is  sometimes  needed  to  dis 
tribute  the  fund  among  the  various  creditors  provided  for  under  the 
assignment;  to  determine  questions  of  priority  and  lien;  to  adjust  con- 
flicting equities  and  claims  of  different  creditors  ;  to  marshal  the  various 
funds  which  are  confided  to  the  trustee,  so  that  a  creditor  having  a  par- 
ticular fund  as  security  for  payment,  may  be  compelled  to  resort  to  it, 
before  taking  the  property  on  which  alone  the  other  creditors  can  rely , 
to  protect  the  rights  of  sureties,  and  direct  the  proper  application  of  col- 
lateral securities  possessed  by  any  of  the  creditors.  The  assignee  or 
trustee  takes  the  assigned  property  subject  to  all  the  equities  of  the 
original  debtor.3  If  it  be  a  judgment,  he  takes  it  subject  to  the  equities 
of  the  judgment  debtor.4  And  thus,  an  assignment  by  one,  of  a  debt  pre- 
viously assigned  by  him,  cannot  pass  any  title,  though  the  debtor  may 

1  Brooks  v.  Marbury,  11  Wheat.  78 ;  S.  4  J.  Ch.  K.  552.    Winteringham  v.  Lafoy, 

C.  7  id.  556.    Tompkins  v.  Wheeler,  16  7  Cowen,  735.    Murray  v.  Riggs,  15  J.  R, 

Pet.  119.  571.     Goodrich  v.  Downs,  6  Hill,  43S. 

s  Hendricks  v.  Robinson,  2  J.  Ch.  R.        3  Murray  v.  Lylburn,  2  J.  Ch.  R.  441. 
283;  S.  0.,  17  J.  R.  538.     Brooks  v.  Mar-        4  Douglass  v.  White,   3  Barb.  Ch.  R 

bury,  11  Wheat.  78.     Kicoll  v.  Mumford,  621. 


Ch.  7.]  Fraudulent  Assignments.  467 

lawfully  pay  to  the  second  assignee,  in  default  of  notice  from  the  first.1 
These  considerations  give  rise  also  to  numerous  conflicting  equities  which 
cannot  be  readily  or  conviently  adjusted  in  a  court  of  law. 

Although  the  subject  of  fraudulent  assignments  and  of  the  marshaling 
of  securities  has  already  been  considered,  under  other  heads,  it  may  not 
be  out  of  place  to  notice,  in  the  present  connection,  the  manner  in  which 
the  subject  is  dealt  with,  in  cases  of  fraud,  as  between  the  trustee  and 
the  creditors  of  the  assignor.  If  the  trust  be  one  which  a  court  of  law 
cannot  sanction,  the  trustee  cannot  sustain  an  action  against  a  judgment 
and  execution  creditor  of  the  assignor,  or  one  claiming  under  such  execu- 
tion sale.  And  neither  a  court  of  law,  or  a  court  of  equity,  can  sustain  an 
assignment,  which  shows  on  its  face  that  it  was  inade,  either  in  whole  or 
in  part,  in  trust  for  the  use  of  the  assignor.  Such  assignment  is  void 
by  the  statute  and  at  common  law,  as  well  as  an  assignment  made 
with  an  express  intent  to  defraud  creditors.2  If  the  fraud  appear  on  the 
face  of  the  assignment,  the  question  as  to  its  validity  can  as  readily  be 
raised  and  decided  in  a  court  of  law,  as  in  a  court  of  equity.  Thus,  when 
a  debtor  in  failing  circumstances  assigned  nearly  all  his  property  to  his 
son,  in  trust  to  sell  the  same,  and  apply  the  proceeds  towards  paying 
four  of  his  creditors,  making  no  provision  for  the  rest,  and  directing  that 
the  surplus,  if  any,  after  paying  the  four  creditors,  should  be  returned  to 
his  assignor,  his  heirs  and  assigns,  the  assignment  was  held  to  be  void 
on  its  face,  for  the  reason  that  the  surplus  was  made  a  trust  for  the  use 
of  the  assignor  ;  and  the  property  having  been  taken  by  the  defendant 
as  a  deputy  sheriff,  by  virtue  of  an  execution  against  the  assignor,  and  in 
favor  of  a  judgment  creditor  of  the  latter,  not  provided  for  in  the  assign- 
in  tit,  it  was  held  further,  that  the  assignee  could  not  maintain  an  action 
at  law  against  the  deputy,  in  consequence  of  the  invalidity  of  the  trust, 
and  that  he  was  rightfully  nonsuited  for  that  reason.3  As  was  well  said, 
on  that  occasion,  the  courts  have  found  great  difficulty  in  upholding 
assignments  which  give  a  preference  among  creditors,  and  such  transfers 
have  only  been  allowed  to  stand  when  the  debtor  makes  an  unconditional 
eusrender  of  his  effects  for  the  benefit  of  those  to  whom  they  rightfully  be- 
long *  To  say  that  an  insolvent  debtor  can  put  any  portion  of  his  prop- 
erty, not  exempt  by  law,  beyond  the  reach  of  creditors,  is  a  monstrous 
proposition.     In  the  language  of  the  chief  justice,  in  Mackie  v.  Cairns 

1  Muir  v.  Schenck,  3  Hill,  228.     Hop-  4  Hyslop  v.  Clark,  14  J.  R.458.     Seav- 

kina  v.  Banks,  7  Cowen,  650.  ing  v.  Brinkerhoffi,  5  J.  Ch.  R.329.   Aus- 

a  2  R.  S.  135,  §1.     Id.  137,  §1.    Good-  tin  v.  Bell,  20  J.  R.  442.   Mackie  v.  Cairns, 

rich  v.  Downs,  6  Ilili,  438.  5  Cowen,  547.     Grover  v.  Wakeman,  11 

*  Goodrich  v.  Downs,  6  Hill,  438.  Wend.  187. 


£08  Trusts.  [Ch.  7 

(supra,)  "  it  offends  the  moral  sense  ;  it  shocks  the  conscience  and  pro- 
duces an  exclamation.  It  is  directly  against  the  statute  and  cannot  stand 
before  it." 

In  the  case  of  Goodrich  v.  Downs,  the  question  arose  in  a  court  of  law, 
in  a  case  where  the  fraud  was  apparent  in  the  trust  deed.  The  right 
of  a  court  of  law  to  deal  with  the  question  would  have  been  the  same, 
had  the  fraudulent  purpose  of  the  assignment  not  appeared  on  the  face 
of  the  instrument,  but  been  shown  by  averments  supported  by  extrinsic 
facts.  Thus  the  continuance  of  the  possession  of  the  assignor,  or  mort 
gagor,  after  the  execution  of  the  instrument,  and  various  acts  of  owner 
ship  subsequently  asserted  by  the  assignor,  afford  evidence  to  a  jury, 
from  which  fraud  may  be  inferred,  as  well  in  a  court  of  law  as  in  a  coui  t 
of  equity.1  However  clear  and  conclusive  the  evidence  of  fraud  may  bo, 
in  cases  of  this  description,  it  must,  it  seems,  in  a  court  of  law,  be  left 
as  a  question  of  fact  to  the  jury ;  but  if  the  jury  comes  to  a  wrong  con- 
clusion, a  new  trial  must  be  granted  as  in  other  cases.2 

But  though  the  same  relief  can,  in  many  cases,  of  fraudulent  assign- 
ments and  trusts,  be  had  in  a  court  of  law  as  in  a  court  of  equity,  yet  in 
all  cases  courts  of  equity  have  concurrent  jurisdiction,  and  in  numeroi/3 
instances  can  afford  more  ample  and  complete  relief  than  can  be  afford*  d 
by  an  action  at  law.  Thus,  where  the  assigned  property  consists,  in 
whole  or  in  part,  of  debts  due  or  to  grow  due  to  the  assignor,  or  of  choses 
in  action  not  liable  to  an  execution  at  law ;  where  it  consists  of  goods, 
wares  and  merchandise,  which  the  trustee  at  once  sells  from  time  to  time, 
and  converts  into  money,  and  an  account  becomes  necessary,  or  an  in- 
junction to  restrain  a  misapplication  of  the  funds,  it  is  obvious  that  an 
action  in  equity  is  the  most  appropriate  remedy.  The  legislative  provis- 
ion in  favor  of  judgment  creditors  who  have  exhausted  their  remedies 
at  law,  to  discover  and  reach  the  property  of  the  judgment  debtor, 
whether  concealed  by  him,  or  held  in  trust  for  him,  was  dictated  by  the 
necessity  of  a  more  perfect  remedy  than  can  be  afforded  by  an  ordinary 
action  at  law.3 

The  cases  in  which  equity  can  afford  the  best  relief  are  illustrated  bj 
an  important  case  in  which  it  was  granted  by  the  chancellor,  and  his  de- 
cree was  affirmed  by  the  court  of  errors.4     In  that  case  the  bill  was  filed 

1  Gardner  v.  Adams,   12  "Wend.  297.  *  2  K.  S.  137,  §  4.    Yance  v.  Philips,  6 

Jackson  v.  Timmerman,  12  id.  299.  Ham  Hill,  433. 

ilton  v.  Russell,  1  Cranch,  310.    Twyne'u  »  2  R.  S.  173,  §  38. 

case.  3  Coke,  80.    Bissell  v.  Hopkins,  3  4  Stodard  v.  Birtler,  2©  Wend.  507 
Cu-.sn,  106. 


On.  7.]  Fraudulent  Assignments.  169 

by  judgment  creditors  of  the  assignors,  whose  execution  at  law  had  been 
returned  wholly  unsatisfied,  to  set  aside  an  assignment  which  had  been 
made  by  the  judgment  debtor,  pending  the  action  at  law,  to  two  of  their 
creditors,  for  and  towards  the  payment  and  satisfaction  of  a  debt  of 
about  $675  due  to  them.  The  goods  assigned  consisted  of  many  parcels 
of  small  value  separately,  and  of  notes  and  accounts,  against  numerous 
persons,  and  principally  for  small  amounts.  The  aggregate  value  of  the 
property  assigned  was  equal  to  twice  the  amount  of  the  debt  of  the 
assignee.  The  goods,  notes  and  accounts  were  left  in  the  possession  of 
the  assignor,  who  was  authorized  by  the  assignees,  as  their  agent,  to  sell 
and  dispose  of  the  goods  for  cash  or  good  security,  and  to  collect  the 
amounts,  and  was  to  be  paid  a  fair  compensation  for  his  services.  The 
assignor  had  no  visible  means  of  supporting  himself  and  family  other 
than  his  business  as  a  merchant,  and  after  the  assignment  continued  in 
his  store,  trading  as  usual,  until  the  goods  were  removed  to  another 
place,  and  no  difference  was  observed  in  the  management  of  the  store 
after  the  assignment  from  what  had  been  usual  previous  to  that  event. 
The  chancellor  decreed  the  assignment  to  be  fraudulent  and  void  as 
against  the  creditors  of  the  assignor,  and  set  it  aside  ;  1st,  because  there 
was  no  change  of  possession  of  the  assigned  property  ;  2d,  because  the 
amount  of  it  greatly  exceeded  the  amount  of  the  debt ;  3d,  because  the 
fbrm  of  the  assignment  indicated  that  the  assignees  were  to  hold  the 
property  absolutely,  though  it  exceeded  the  amount  of  their  debt,  and  if 
it  fell  short,  had  their  remedy  unimpaired  against  the  assignor  for  any 
deficiency,  thus  leaving  it  fairly  to  be  presumed  that  some  secret  or  im- 
plied understanding  existed  between  the  parties  to  the  transaction,  to 
keep  the  surplus  from  other  creditors  for  the  benefit  of  the  assignor  him- 
self. The  decree  of  the  chancellor  was  affirmed  by  an  equal  division  of  the 
court  of  errors.  As  those  who  differed  from  the  chancellor  did  so,  to  a 
great  extent,  on  questions  of  fact,  it  is  unnecessary  in  this  place  to  can- 
vass their  reasons  in  other  respects.  Those  questions  of  fact  would,  in 
a  court  of  law,  have  had  to  be  submitted  to  a  jury ;  but  in  a  court  of 
equity,  where  no  issue  for  a  jury  trial  had  been  asked  by  either  party, 
were  necessarily  decided  by  the  court.  Though  in  this  case,  had  the 
plaintiff's  execution,  instead  of  being  returned  unsatisfied,  been  levied 
on  the  goods  in  the  store  and  in  the  possession  of  the  assignor,  the  valid- 
ity of  the  assignment  could  have  been  tested  in  an  action  at  law  against 
the  sheriff  at  the  suit  of  the  assignees,  yet  the  relief  afforded  would  only 
have  extended  to  the  property  seized  ;  and  have  left  a  resort  to  equity 
still  necessary  to  obtain  an  account  of  the  sales,  and  the  proceeds  of  the 
notes  and  accounts.     It  was,  therefore,  a  proper  case  for  the  interposi- 


470  Trusts.  [Ch.  7 

tion  of  a  court  of  equity,  -which  could  administer  the  remedy  in  a  more 
effective  and  comprehensive  manner  than  a  court  of  law. 

Numerous  other  cases  may  be  cited,  showing  in  what  manner  a  court 
of  equity  aids  a  creditor  in  setting  aside  a  fraudulent  assignment,  and  in 
discharging  property  from  the  incumbrances  of  a  trust.  It  is  a  part  of 
its  legitimate  office  to  remove  obstructions  to  the  free  operation  of  the 
ordinary  course  of  justice,  and  to  disperse  the  clouds  which  the  cunning 
devices  of  the  fraudulent  may  gather  around  the  title  to  property.' 

But  the  assistance  of  equity  is  by  no  means  confined  to  creditors  seek 
ing  to  set  aside  an  assignment  as  fraudulent.  It  is  often  indispensable 
that  its  aid  should  be  granted  to  creditors  claiming  under  the  assignment, 
to  compel  the  execution  of  the  trust,  to  supply  the  failure  of  a  trustee,  or 
to  restrain  a  threatened  breach  of  trust  prejudicial  to  those  interested  in 
the  trust  funds. 

We  may  conceive  of  cases  in  which  the  refusal  of  a  trustee  to  act  would 
subject  him  to  an  action  at  law  ;  but  that  is  not  the  usual  nor  the  appro- 
priate remedy.  In  general,  it  may  be  said,  that  if  a  trustee  becomes 
disqualified  to  act,  as  if  a  femnie  trustee  marry;2  or  if  the  trustee  mis- 
behave himself  in  any  way,  as  if  he  improperly  become  a  purchaser  of 
the  trust  fund  ;3  or  if  he  abscond  on  a  charge  of  forgery  ;4  or  if  he  refuse 
to  execute  the  trust,  when  reasonably  required  to  do  so  by  the  cestui  que 
trust  ;s  in  these  and  the  like  cases,  the  cestui  que  trust  may  have  the 
old  trustee  removed,  and  a  new  trustee  appointed  in  his  room.  This 
power  of  the  court  existed  before  the  Revised  Statutes,  which  are  in  a 
great  measure  declaratory,  in  this  respect,  of  the  then  existing  law.7  In 
a  recent  case,  when  a  trustee  in  a  mortgage,  given  by  a  railroad  com- 
pany, to  secure  the  payment  of  certain  of  its  bonds,  as  they  should  become 
due  and  payable,  suffered  a  portion  thereof  to  remain  unpaid  after  matu- 
rity, and  neglected  and  refused  to  take  possession  of  the  mortgaged  prop- 
erty, and  to  execute  the  trust  by  enforcing  the  mortgage,  on  the  request 
of  the  bond  holders,  without  any  sufficient  excuse  for  such  neglect  and 
refusal,  it  was  held  to  be  a  proper  case  for  the  removal  of  the  trustee/ 
As  the  court  will  not  permit  a  trust  to  fail  for  the  want  of  a  trustee  M 


1  Petit  v.  Shepherd,  5  Paige,  403.  Pad-  6  In  the  matter  of  the  Mechanics1  P»ank, 

cliff  v.  Rowley,  2  Barh.  Ch.  R.  23.  2  Barb.  S.  0.  R.  446. 

'  Lake  v.  De  Lambert,  4  Ves.  592.  6  De  Peyster  v.  Clendining,  8  Paige, 

'  Ex  parte  Reynolds.  5  Ves.  707.  295. 

Millard  v.  Eyre,  2  Yes.  jr.  94.  '  2  Barb.  S.  C.  R.  446. 


Ch.  7.]  Fraudulent  Assignments.  471 

execute  it,  so  -when  all  the  trustees  refuse  to  act  the  trust  devolves  upon 
the  court,  and  a  new  trustee  -will  be  appointed  if  necessary.1 

Although  the  removal  of  the  trustee  and  the  appointment  of  another 
for  the  refusal  of  the  former  to  perform  his  duty  when  required,  affords 
in  general  an  ample  remedy,  yet  it  is  conceived  that  a  trustee  may  be  re- 
quired by  the  order  or  decree  of  a  court  of  equity  to  execute  a  duty 
required  by  the  nature  of  the  trust.  Though  at  law  the  legal  iuterest  in 
the  estate,  whether  real  or  personal,  is  in  the  trustees,  and  they  are  en- 
titled to  exercise  all  the  powers  of  disposition  incident  to  the  legal  owner- 
ship, yet  in  equity  their  legal  powers  are  regarded  as  under  the  control, 
and  to  be  exercised  in  subserviency  to  the  interest  of  the  cestui  que 
trust,  according  to  whose  direction  it  is  their  duty  to  convey  and  dispose 
of  the  trust  property.  In  general,  a  valid  trust  in  its  creation  vests  the 
whole  estate  in  the  trustees  in  law  and  in  equity,  subject  only  to  the 
execution  of  the  trust;  and  the  person  for  whose  benefit  the  trust  is  cre- 
ated takes  no  estate  or  interest  in  the  lands,  but  may  enforce  the  per- 
formance of  the  trust  in  equity.2  And  when  the  trust  is  of  personal 
estate,  and  so  not  within  the  statute,  the  trustee  is  bound  to  convey  the 
property  according  to  the  direction  of  the  cestui  que  trust ;  and  if  he  fails 
to  do  so,  he  will  be  chargeable  with  costs,  in  an  action  to  compel  such 
conveyance.3 

When  the  trustee  sets  up  unfounded  objections  to  the  performance 
of  his  trust,  and  renders  an  application  to  the  court  necessary,  he  will 
be  subjected  to  the  costs  of  the  litigation.* 

As  with  us,  the  estate  of  the  trustee  ceases  when  the  purposes  for  which 
an  express  trust  was  created  has  ceased ;  and  as  a  trust  does  not,  on 
the  death  of  a  surviving  trustee,  descend  to  his  heirs,  but,  if  then  unexe- 
cuted, vests  in  the  court  of  chancery  with  all  the  powers  and  duties  of 
the  original  trustee,  it  is  obvious  that  the  occasions  for  requiring  a  con- 
veyance, from  the  original  trustee  to  a  new  trustee,  are  less  frequent  here 
than  in  England ;  but  whenever  such  conveyance  is  necessary,  it  may  be 
decreed. 

There  are  cases  where  it  is  not  necessary,  in  order  to  obtain  relief, 
either  to  apply  for  the  removal  of  a  trustee  for  misbehavior,  or  for  the 
appointment  of  another.  If  the  trustee  has  parted  with  the  trust  fund 
fraudulently,  the  cestui  que  trust  may,  at  his  election,  cither  proceed 
against  the  trustee  alone  for  satisfaction,  or  may  join  the  fraudulent 

1  1  R.  S.  730,  §  70.  3  Penfold  v.  Bouch,  4  Hare,  271. 

2  1  R.  S.  729,  §  60.  «  Willis  v.  Iliscox,  4  Myl.  &  Cr.  197. 


472  Trusts.  [Ch.  7 

assignee  in  the  same  action.1  In  sucli  a  case,  the  fraudulent  assignee  of 
the  trustee  is  treated  as  the  trustee  for  the  purpose  of  the  remedy. 

As  the  cestui  que  trust  may  compel  the  trustee  to  perform  his  duty; 
or  remove  him  for  his  misconduct,  so,  on  the  other  hand,  the  trustee  may 
he  restrained  by  an  injunction  from  doing  an  act  not  warranted  by  the 
instrument  creating  the  trust.  The  principle  on  which  the  court  acts  is. 
that  a  trustee  shall  not  be  permitted  to  use  the  powers  which  the  trust 
may  confer  upon  him  at  law,  except  for  the  legitimate  purposes  of  the 
trust.2 

No  assignment  for  the  benefit  of  creditors  will  be  upheld  which  i3 
made  in  contravention  of  the  statute,  or  public  policy.  Hence,  an  as- 
signment authorizing  the  assignee  to  lease  or  mortgage  the  assigned 
property  for  the  benefit  of  creditors  is  invalid,  the  statute  only  author- 
izing such  an  assignment  to  sell  lands  for  the  benefit  of  creditors.3  Nor 
can  an  assignment  be  upheld  which  authorizes  the  assignee  to  name  the 
successor  of  the  trustee,  in  case  the  trastee  named  in  the  assignment 
wishes  to  resign.  For  such  an  authority  might  deprive  the  court  of  the 
power  to  remove  the  trustee  and  appoint  another  in  his  place,  upon  the 
application  of  the  creditors.4  Nor  can  it  be  upheld  if  it  attempts  to  re- 
lease the  trustee  from  the  degree  of  care,  in  the  management  of  the 
the  trust,  which  the  law  devolves  upon  him.5 


SECTION  IV. 

OF  MARRIAGE  SETTLEMENTS,  AND  EXECUTORY  CONTRACTS  FOR  SUCH  SETLLEMENTS. 

Having  thus  noticed  some  of  the  trusts  created  by  deed,  as  they  occur 
in  mortgages  and  assignments,  we  shall  proceed,  under  the  same  general 
head,  of  trusts  created  by  deed,  to  the  doctrine  of  trusts  in  reference  to 
marriage  settlements,  and  executory  contracts  for  such  settlements.     1% 

1  Bailey  v.  Inglee,  2  Paige,  278.  Ander-  »  1  R.  S.  728,  §  55.    Plank  v.  Scher- 

son  v.  Van  Allen,  12  J.  R.  343.    Shep-  merhorn,  3  Barb.  Ch.  R.  646. 

herd  v.  M'Evers,  4  J.  Ch.  R.  136.     Gil-  4  Id. 

christ  v  Stevenson,  9  Barb.  9.  *  Litchfield  v.  White,  3  Seld.  488.    For 

*  Ballis  v.  Strntt,  1  Hare,  146.     Anony-  other  matters  on  the  subject  of  fraudu- 

uious,  6  Mad.  Ch.  R.  10.     Webb  v.  Earl  lent  assignments    see  the  head  Fraud, 

of  Shaftesbury,  7  Ves.  487.    Robertson  Chap.  III. 
v.  Bullions,  9  Barb.  64 


Oh.  7. J  Marriage  Settlements.  473 

is  not  proposed  to  discuss,  under  this  head,  the  relative  rights  of  husband 
and  wife,  nor  to  treat  of  the  wife's  equity  to  a  separate  provision  out  of 
her  own  property,  which  the  husband  cannot  reach  without  the  aid  of  a 
court  of  equity.  The  first  belongs  to  a  treatise  on  the  doctrines  of  the 
common  law ;  and  the  last  will  be  more  conveniently  considered,  when 
treating  of  the  rights  of  married  women,  under  a  subsequent  head.'  At 
present,  we  propose  only  to  notice  the  subject  of  marriage  settlements,  as 
it  aifords  illustrations  of  the  doctrine  of  trusts. 

The  effect  which  marriage  has,  at  common  law,  upon  the  capacity  of 
the  wife  tc  make  contracts,  and  upon  her  property  generally,  lead  to  the 
introduction  of  marriage  settlements.  Their  object,  especially  in  the 
case  of  a  strict  settlement,  is  to  provide  a  life  estate  for  the  wife,  beyond 
the  control  of  the  husband,  and  to  secure  a  provision  for  the  issue  of  the 
marriage,  which  the  parents  cannot  defeat.  A  few  remarks  on  the  doc- 
rines  of  the  common  law,  will  show  the  reasonableness  and  adaptation 
of  such  settlements  to  the  purposes  for  which  they  are  designed. 

It  is  a  general  rule  of  the  common  law  that  a  married  woman  cannot 
possess  personal  property,  and  that  every  thing  of  this  nature,  to  which 
she  is  entitled  at  the  time  of  her  marriage,  and  which  accrues  in  her 
right  during  its  continuance,  is  vested  solely  in  her  husband.2 

The  personal  property  to  which  a  woman  may  be  entitled  at  the  time 
of  the  marriage,  or  during  its  continuance,  consists  of  three  kinds,  viz. 
chattels  jKfsonal)  c/ioscs  in  action,  and  chattels  real.  Marriage  ope- 
rates as  an  absolute  gift  to  the  husband  of  all  the  property  coming  under 
the  description  of  personal  chattels,  which  were  in  the  possession  of  the 
wife  at  the  time  of  the  marriage,  or  which  come  to  her  during  coverture, 
whether  by  gift  or  bequest,  or  in  any  other  way.  The  husband  is  also 
entitled  to  all  the  wife's  earnings  by  her  skill  or  labor,  and  these  belong 
to  him  absolutely,  and  they  do  not  survive  to  her,  but  go  to  his  execu 
tors  or  administrators.3  To  the  choses  in  action  which  belonged  to  the 
wife  at  the  marriage,  or  which  accrue  to  her  during  coverture,  the  bus- 
hand  is  entitled,  if  he  reduces  them  to  possession  during  his  lifetime  ;  but 
if  he  dies  without  doing  so,  they  become  hers  by  survivorship.  But  if 
she  dies  before  he  has  reduced  them  to  possession,  he  takes  them  only 
as  her  administrator,  and  not  by  survivorship.  The  chattels  real  of  the 
wife,  such  as  terms  for  years,  whether  legal  or  equitable  interests,  bo- 

1  Post,  Chap.  VIII,  Sec.  2.  Butler's  Notes,  804,  to  lib.  3,  Co.  Litt. 

3  Clanc.  Rights  of  Women,  1.     Reeves'  2  Kent's  Com.  143. 

Dom.   Rel.   1.     Blanchard    v.   Blood,   2  3  Id.    Lovitt  v.  Robinson,  7  How.  Pr 

Barb.   S.   0.  R.  855.     Co.  Lilt.  351,  b.  R.  105. 

Eq  Jlr.  60 


474  Trusts.  [Ch.  7 

long  to  the  husband  in  a  qualified  manner.  He  may  transfer  them  in  his 
lifetime,  and  thus  become  entitled  absolutely  to  the  avails  of  them.  But 
he  cannot  dispose  of  them  by  will,  and  if  he  fails  to  dispose  of  them  while 
he  lives,  they  survive  on  his  death  to  his  wife.  He  has  the  same  right  to 
her  chattels  real  which  accrue  to  her  during  the  coverture;'  and  he  is 
entitled  to  the  rents  and  profits  of  her  real  estate  during  the  coverture. 
As  a  compensation  for  these  benefits,  the  law  throws  upon  the  husband 
the  burden  of  the  wife's  debts,  which  were  incurred  while  she  was  sole. 
and  makes  him  liable  for  them  at  any  time  during  the  continuance  01 
the  marriage.2 

The  foregoing  are  principles  of  the  common  law.  How  far  they  are 
modified  by  the  act  for  the  more  effectual  protection  of  the  property  of 
married  women,3  will  be  considered  when  we  come  to  treat  of  the  subject 
of  married  women  hereafter. 

It  is  obvious,  that  in  the  present  state  of  society,  there  is  sometimes  an 
appearance  of  hardship  in  the  operation  of  the  strict  rules  of  the  com 
mon  law.  The  hopes  of  a  parent,  which  have  been  centered  on  the  ris- 
ing fortunes  of  a  daughter  and  her  offspring,  may  be  blasted  alike  by  the 
unexpected  profligacy  of  her  husband,  and  the  unforeseen  vicissitudes  of 
business.  The  accumulations  of  a  life  of  industry  and  economy  may  be 
thus  swept  away,  and  she,  who  was  brought  up  in  affluence,  may  be 
doomed,  without  fault  on  her  part,  to  a  life  of  penury  and  want.  Paren- 
tal affection,  as  well  as  humanity,  will  struggle  to  prevent  such  a  disas- 
trous result. 

But  while  the  common  law  will  not  allow  a  married  woman  to  possess 
personal  property,  independent  of  her  husband,  a  court  of  equity  will  up- 
hold a  trust  created  for  the  sole  benefit  of  the  wife,  and  see  that  it  is 
strictly  performed.  Property  of  any  description,  real  or  personal,  may 
be  limited  to  the  use  of  a  married  woman.  Such  estate  may  be  created 
either  before,  or  during  the  marriage.  Before  marriage  it  may  be  created 
by  the  woman  herself  of  her  own  property,  or  by  the  intended  husband, 
or  a  stranger.  During  the  marriage  it  may  be  created  by  the  husband,4 
or  by  a  stranger,  but  not  by  the  wife  ;  and  if  a  marriage  takes  place 
without  a  settlement,  or  an  agreement  for  one,  a  court  of  equity  cannot 
reliere  against  the  doctrines  of  the  common  law.5 

The  trusts  contained  in  marriage  articles,  are  of  two  kinds ;  trusts 
executed,  and  trusts  executory.  Trusts  executed  are  legal  estates,  and  are 
to  be  construed  by  the  rules  applicable  to  such  estates  ;  trusts  executory 

1  Clancy,  2,  10.     Co.  Litt.  351,  a.  4  Coomes  v.  Elling,  3  Atk.  679.  Clancy 

"  Bac.  Abr.  tit.  Baron  and  Feme,  C.         251. 

'  I...  of  1848,  p.  307.    Id.  1849,  p.  528.        6  Incledon  v.  Northcote,  3  Atk.  435. 


Ch.  7. j  Strict  Settlements.  475 

are  when  something  is  expressly  or  impliedly  required  to  be  done ;  and 
with  this  latter  class  of  trusts,  courts  of  equity  take  more  liberty,  and 
carry  them  out  according  to  the  intent  of  the  parties.1  And  there  is  no 
difference  in  the  execution  of  an  executory  trust,  created  by  a  will,  and  of 
a  covenant  in  marriage  articles.2  While  the  rule,  as  laid  down  in  Shel- 
ley's case,3  was  in  force,  the  difficulty  was  to  settle  when  the  rule,  and 
when  the  intention,  in  opposition  to  the  rule,  should  prevail.  If  the  rule 
prevailed,  the  word  heirs  was  treated  as  a  word  of  limitation,  the  Avhole 
power  of  disposition  vested  in  the  first  taker,  and  he  became  owner  in  fee.  If 
however,  the  word  heirs  could  be  treated  as  a  word  of  purchase,  the  first 
taker  would  be  seised  only  of  an  estate  for  life.4  The  rule  in  Shelley's 
case  was  the  law  of  this  state  prior  to  the  Revised  Statutes.5  By  those 
statutes  it  is  enacted,  that  "  where  a  remainder  shall  be  limited  to  the 
heirs  or  heirs  of  the  body  of  a  person  to  whom  a  life  estate,  in  the  same 
premises,  shall  be  given,  the  persons  who,  on  the  termination  of  the  life 
sstates,  shall  be  the  heirs,  or  heirs  of  the  body  of  such  tenant  for  life,  shall 
be  entitled  to  take  as  purchasers,  by  virtue  of  the  remainder  so  lim- 
ited to  them."6  The  abolition  of  the  rule  applies  equally  to  deeds  and 
wills.7  The  effect  of  the  rule,  as  declared  by  the  act,  will  be,  in  those 
.cases  where  the  rule  in  Shelley's  case  would  otherwise  have  applied,  to 
change  estates  in  fee  into  contingent  remainders,  and  to  tie  up  property 
from  alienation  during  the  life  of  the  first  taker  and  the  minority  of  his 
heirs.8  This  is  precisely  the  object  sought  to  be  obtained  by  a  strict  set- 
tlement. For  this  purpose,  it  is  not  enough  to  provide  a  life  estate  for  the 
wife.  One  of  the  principal  objects  of  a  strict  settlement  is  to  secure  a 
provision  for  the  issue  of  the  marriage,  which  it  shall  not  be  in  the  power 
of  either  parent  to  defeat.  This  object  was  accomplished,  formerly,  by 
so  framing  the  articles  that  the  trust  could  be  treated  as  executory,  and 
thus  the  intention  of  the  party  could  govern,  and  the  first  taker  be  de- 
prived of  the  power  of  destroying  the  contingent  remainders.9  The 
change  introduced  by  the  Revised  Statutes  has  greatly  facilitated  the 
accomplishment  of  this  object. 

1  Bagshaw  v.  Spencer,  2  Atk.  577, 580.  B  Schoonmaker  v.  Sheely,  3  Hill,  165 ; 

Roberts  v.  Dixwell,  1  id.  607.    1  Fonb.  S.  C.  in  error,  3  Denio,  485.    Brant  v. 

Eq.  B.  1,  ch.  6,  §  8,   note  s.     Wood  v.  Gelston,  2  J.  Cas.  384. 

Burnham,  6  Paige,  513 ;  affirmed  on  ap-  •  1  R.  S.  725,  §  28. 

peal,  26  Wend.  9.  7  Schoonmaker  v.  Sheely,  3  Hill,  168, 

I  The  Countess  of  Lincoln  v.  The  Duke  per  Bronson,  Ch.  J. 

of  Newcastle,  12  Ves.  227,  per  Ld.  Eldon.        8  4  Kent's  Com.  232. 

I I  Co.  104.  9  Baskervilie  v.  Baskerville,  2  Atk.  279. 
*  See  a  review  of  the  cases  on  the  rule    1  Mad.  Ch.  Pr.  450. 

in  Shellev's  case,  4  Kent's  Com.  214-233. 


476  Trusts.  [Ch.  T 

At  common  law,  a  freehold  estate  could  not  be  created  to  commence  in 
possession,  at  a  future  day,  unless  as  a  remainder  ;  nor  could  a  remainder 
be  limited  on  a  life  estate  in  a  term  of  years ;  nor  could  a  contingent  re- 
mainder of  freehold  be  limited  on  a  term  of  years  ;  nor  could  a  fee  be 
limited  on  a  fee  on  a  contingency  defeating  the  prior  estate.  But  now, 
by  the  Revised  Statutes,  a  future  estate  may  be  limited  to  commence  in 
possession,  at  a  future  day,  either  without  the  intervention  of  a  prece- 
dent estate,  or  on  the  determination,  by  lapse  of  time  or  otherwise,  of  a 
precedent  estate,  created  at  the  same  time.'  And  an  estate  for  life 
may  be  limited  as  a  remainder  on  a  term  of  years,  if  so  limited  to  a  per- 
son in  being,  at  the  creation  of  such  estate.2  And  subject  to  the  rules 
established  by  the  statute,  a  freehold  estate,  as  well  as  a  chattel  real,  may 
be  created,  to  commence  at  a  future  day  ;  an  estate  for  life  may  be  crea- 
ted in  a  term  of  years,  and  a  remainder  limited  thereon  ;  a  remainder  of 
a  freehold  or  chattel  real,  either  contingent  or  vested,  may  be  created 
expectant  on  the  determination  of  a  term  of  years ;  and  a  fee  may  be 
limited  on  a  fee,  upon  a  contingency,  which,  if  it  should  occur,  must  hap- 
pen within  the  period  prescribed  by  the  act.3  It  is  further  provided,  that 
no  expectant  estate  can  be  defeated  or  barred  by  any  alienation,  or  other 
act  of  the  owner  of  the  intermediate  or  precedent  estate,  nor  by  any  de- , 
struction  of  such  precedent  estate  by  disseisin,  forfeiture,  surrender,  mer- 
ger, or  otherwise;4  except  by  some  act  or  means  which  the  party  creating 
such  estate,  shall,  in  the  creation  thereof,  have  provided  for  or  authorized : 
nor  shall  an  expectant  estate,  thus  liable  to  be  defeated,  be  on  that  ground 
adjudged  void  in  its  creation.5  And  with  regard  to  remainders,  it  is  pro- 
vided, that  no  remainder,  valid  in  its  creation,  shall  be  defeated  by  the 
determination  of  the  precedent  estate,  before  the  happening  of  the  con- 
tingency on  which  the  remainder  is  limited  to  take  effect ;  but  should 
such  contingency  afterwards  happen,  the  remainder  shall  take  effect,  in 
the  same  manner,  and  to  the  same  extent,  as  if  the  precedent  estate  had 
continued  to  the  same  period.6  And,  in  addition,  the  qualities  with  re- 
gard to  descent  and  alienation  of  expectant  estates  are  the  same  as  those 
of  estates  in  possession.7  The  foregoing  provisions,  and  others,  Avhich 
nave  been  already  noticed  in  this  chapter,  have  dispensed  with  any  further 
aeed,  in  this  state,  of  trustees  to  preserve  contingent  remainders  in  mar- 
riawe  settlements." 


1 1  R.  S.  723,  §  10.  MR.  S.  725,  §  33. 

■  Id.  724,  §  21.  6  U-  §  34. 

•  Id.  724,  §  24.  7  Id.  §  35. 

4  Id.  725,  §  32.  8  4  Kent's  Com.  247. 


Ch.  7.]  Marriage  Settlements.  477 

A  trust  to  receive  the  rents  and  profits  of  lands,  and  apply  them  to  the 
use  of  any  person  during  the  life  of  such  person,  or  for  any  shorter  term ; 
And  a  trust  to  receive  the  rents  and  profits  of  lands,  and  to  accumulate 
the  same  for  the  purposes  of  the  act,  are  expressly  provided  for.1  And 
the  better  opinion  is,  that  the  trust  is  satisfied  when  the  trustee  pnys 
over,  in  money,  to  the  cestui  qui  trust,  the  sums  which  have  accrued  and 
been  received  by  him,2  provided  the  trustee  is  under  no  legal  disability 
to  receive  it. 

The  length  of  time  and  purpose  for  which  the  rents  and  profits  of  real 
estate,  for  the  benefit  of  one  or  more  persons,  may  be  directed  by  any 
will  or  deed  to  be  accumulated,  are  prescribed  by  statute.3  1.  If  such  accu- 
mulation be  directed  to  commence  on  the  creation  of  the  estate,  out  of 
which  the  rents  and  profits  are  to  arise,  it  must  be  made  for  the  benefit 
of  one  or  more  minors  then  in  being,  and  terminate  at  the  expiration  of 
*-heir  minority ;  2.  If  such  accumulation  be  directed  to  commence  at  any 
time  subsequent  to  the  creation  of  the  estate  out  of  which  the  rents  and 
profits  are  to  arise,  it  shall  commence  within  the  time  permitted  by  law 
for  the  vesting  of  future  estates,  and  during  the  minority  of  the  persons 
for  whose  benefit  it  is  directed,  and  shall  terminate  at  the  expiration  of 
such  minority.  A  similar  rule  is  adopted  with  respect  to  the  accumula- 
;ion  of  the  interest  of  money,  the  produce  of  stock,  or  other  income  or 
profits  arising  from  personal  propert}T.4 

The  absolute  ownership  of  personal  property  cannot  be  suspended  by 
any  limitation  or  condition  whatever,  for  a  longer  period  than  during  the 
continuance,  and  until  the  termination  of  not  more  than  two  lives  in 
being  at  the  date  of  the  instrument  containing  such  limitation  or  condi- 
tion ;  or  if  such  instrument  be  a  will,  for  not  more  than  two  lives  in 
being  at  the  death  of  the  testator.5  In  all  other  respects,  limitations  of 
future  or  contingent  interests  in  personal  property,  shall  be  subject  to 
the  rules  prescribed  by  the  act  in  relation  to  future  estates  in  lands.6 

With  regard  to  the  form  of  words  necessary  to  create  a  trust  for  the 
separate  use  of  a  married  woman,  it  is  not  essential  that  any  particular 
phraseology  be  used.  It  is  sufficient  if  there  appears  a  clear  intent  to 
give  the  property  to  the  wife  for  her  own  benefit,  and  to  exclude  her 
husband.  When  the  trust  is  for  the  sole  benefit  of  the  wife,  and  the 
property  is  vested  in  a  third  person  as  trustee  for  her,  and  all  moneys 

1  E.  S.  728,  §  55.  '1  R.  S.  726,  §  37. 

5  (;,,tt  v.Cook,  7 Paige,  539,  and Leggett  4  Id.  773,  §  3. 

,:  Perkins,  2  Comst.  306.     Coster  v.  Lor-  6  Id.  §  1. 

Ward.  14  Wend.  265,  per  Savage,  contra.  *  Id.  773,  §  2.     Id.  722  et  8eq 


478  Trusts.  [Ch.  7. 

received  from  the  trust  property  are  to  be  paid  to  her  individually,  these 
circumstances  have  been  held  to  be  equivalent  to  a  provision  for  payment 
to  the  wife  upon  her  separate  or  individual  receipt ;  and  are,  therefore, 
sufficient  to  exclude  the  husband.1 

Thus,  where  one  Colton,  being  seised  in  fee  of  a  tract  of  land  in  the 
city  of  NeAV-York,  executed  a  declaration  of  trust,  declaring  that  the 
consideration  money  which  had  been  paid  for  such  premises  was  the 
proper  money  of  the  plaintiff,  a  married  woman  ;  and  that  the  premises 
had  been  conveyed  to,  and  were  held  by  him,  in  trust  for  her  sole  use 
and  benefit,  separate  and  apart  from  her  husband,  as  if  she  were  a  feme 
sole ;  and  covenanting  that  he  would  convey  the  same  in  such  manner  as 
she  should  direct.  And  for  the  performance  of  this  covenant,  Colton 
bound  himself  to  one  Jackson,  as  trustee,  for  the  separate  use  of  the 
plaintiff:  and  afterwards  conveyed  the  premises  mentioned  in  the  decla- 
ration of  trust,  for  the  consideration  of  $24,000,  to  Kissam,  jr.,  who,  to 
secure  a  portion  of  the  purchase  money,  executed  to  Colton  his  bond, 
secured  by  a  mortgage  upon  the  whole  premises  so  conveyed  to  him,  con- 
ditioned for  the  payment  of  $20,000,  on  or  before  a  certain  day  named 
Afterwards,  and  before  the  bond  and  mortgage  became  due,  Colton  as- 
signed the  said  bond  and  mortgage  to  Kissam,  who  on  the  same  day  ex- 
ecuted a  declaration  of  trust,  declaring  that  the  same  had  been  assigned 
to  him  for  the  sole  use  and  benefit  of,  and  in  trust  for  the  plaintiff, 
and  that  he  would  account  for,  and  pay  over  to  her  individually,  all 
moneys  that  might  be  received  thereon.  The  trust  thus  declared  was 
held  to  be  clearly  valid,  within  the  Revised  Statutes,  it  being  a.  trust  of 
personal  property  for  a  purpose  not  forbidden  by  law.  And  that  the 
words  sufficiently  limited  the  authority  to  pay  her  individually,  in  exclu- 
sion of  her  husband. 

With  respect  to  ante-nuptial  agreements,  between  a  feme  sole  and  her 
intended  husband,  reserving  to  herself  the  power  of  disposing  of  her  own 
property,  either  real  or  personal,  during  coverture,  it  has  been  held  that 
they  will  be  upheld  in  equity,  without  the  intervention  of  a  trustee.  Thus, 
where  the  wife,  before  marriage,  entered  into  an  agreement  with  her  in- 
tended husband,  that  she  should  have  power  during  the  coverture  to  dis 
pose  of  her  real  estate  by  will;  and  she  afterwards  devised  the  whole  of 
her  estate  to  her  husband,  this  was  held  a  valid  disposition  of  her  estate  in 
equity  ;  and  the  heirs  at  law  of  the  wife  were  decreed  to  convey  the  legal 
estate  to  the  devisee.2  In  the  above  case,  the  question  arose  between 
the  husband,  as  devisee  of  the  wife,  and  the  heirs  at  law  of  the  wife.     It 

1  Stuart  v.  Kissam,  2  Barb.  S  C.  R.  493.     a  Bradisk  v.  Gibbs,  3  J.  Ch.  R.  523. 


Ch.  7.J  Marriage  Settlements.  479 

is  a  general  rule,  that  equity  will  execute  marriage  articles,  at  the 
instance  of  all  persons  within  the  influence  of  the  marriage  consideration. 
The  husband  and  wife,  and  their  issue,  are  all  within  the  influence  of 
that  consideration.  The  husband,  in  regard  to  the  devise  from  his  wife 
under  the  power,  was  not  a  volunteer.  The  marriage  articles  were  treated 
as  founded  on  the  consideration  of  marriage,  which  is  a  good  and  valuable 
consideration  ;  and  the  provision  in  the  will  was  founded,  it  was  said,  on 
the  same  consideration  as  if  it  had  been  a  part  of  the  original  ante-nuptial 
contract.  Chancellor  Kent,  in  reviewing  the  leading  cases  on  the  sub- 
ject, arrived  at  the  conclusion,  that  it  was  not  indispensable  that  the 
estate  should  have  been  vested  in  trustees ;  but  the  mere  agreement 
entered  into  before  marriage  with  her  intended  husband,  that  she  should 
have  power  to  dispose  of  her  real  estate  during  coverture,  enabled  her 
to  do  so.'  It  has  already  been  shown  that  equity  never  suffers  a  valid 
trust  to  fail  for  the  want  of  a  trustee. 

In  i  subsequent  case,  the  question  arose  between  the  wife  claiming 
undci  an  ante-nuptial  contract  with  her  husband,  and  the  creditors  of  the 
hu-  and  by  judgment  and  execution,  and  the  want  of  a  trustee  in  the 
settlement  was  held  to  be  no  objection  to  the  validity  of  the  instrument 
and  title  of  the  wife.2 

It  was  formerly  supposed  that  the  interposition  of  trustees  was,  in  all 
cases  of  this  sort,  whether  before  or  after  marriage,  indispensable  for  the 
protection  of  the  wife's  rights  and  interests.  But  though,  in  strict  pro- 
|  /.  that  should  always  be  done,  and  it  is  usually  done  in  regular  and 
well  considered  settlements;  yet  it  has  been  for  more  than  a  century 
lished  in  courts  of  equity,  that  whenever  real  or  personal  property 
is  given  or  devised  to,  or  settled  upon  a  married  woman,  either  before  or 
after  marriage,  for  her  separate  or  exclusive  use,  without  the  intervention 
of  trustees,  the  intention  of  the  parties  may  be  effectuated  in  equity, 
and  the  wife's  interest  protected  against  the  marital  rights  and  claims  of 
the  husband.  In  such  a  case  the  husband  will  be  considered  the  trustee, 
whether  he  was  a  party  to  the  instrument  under  which  the  wife  claims, 
or  not.8  If  they  can  be  upheld  against  the  claims  of  the  husband,  thej- 
can  equally  be  upheld  against  his  creditors.'' 

Although  the  agreement  becomes  extinguished  at  law,  by  the  subse- 
quent marriage,  if  there  be  no  trustee,  yet  equity  supports  it,  and  will 
compel  the  husband  to  perform  it.5 

1  Bradish  v.  Gibbs,  3  J.  Ch.  R.  547.  3  Blanchard  v.  Blood,  2  Barb.  S.  0  R, 

2  Strong  v.  Skinner,  4  Barb.  S.  C.  R.     354.     Story's  Eq.  §  1380. 

640.     Meth.  Epis.  Cburcli  v.  Jacque,  1         4  Strong  v.  Skinner,  4  Barb.  146. 
J.  Oh.  R.  05.  450.  l  Id.  552. 


480  Trusts.  [Ch.  7 

But  though  a  woman,  whilst  she  remains  sole,  may  dispose  of  hei  own 
property  as  she  sees  fit,  yet  equity  requires  that  she  must  so  exercise  this 
right  as  not  to  disappoint  the  just  expectations  of  her  intended  hushand. 
If,  therefore,  a  woman,  in  contemplation  of  marriage,  makes  a  conveyance 
of  her  own  estate  in  trust,  for  her  separate  use,  without  the  privity  of 
her  intended  husband,  or  does  any  other  act,  without  such  privity,  affect- 
ing her  estate,  other  than  upon  valuable  consideration,  such  conveyance 
or  act,  in  case  the  marriage  takes  effect,  will  be  relieved  against  in  a  court 
of  equity,  on  the  application  of  the  husband,  as  a  fraud  upon  his  marital 
rights.  The  ground  of  interference  is  the  fraud  practiced  upon  the  intended 
husband.'  His  marital  rights  are  the  consideration  for  the  burdens  im 
posed  upon  the  husband  by  the  marriage.  These  rights  are  of  such  a 
character  that  they  may  be  the  subject  of  fraud.2 

Where  the  woman,  in  contemplation  of  marriage,  and  with  the  assent  of 
her  intended  husband,  made  a  settlement  for  her  separate  use,  and  the 
marriage  did  not  take  place,  but  she  immediately  afterwards  married 
another  person,  who  was  not  privy  to  the  settlement,  Lord  Thurlow  re- 
fused relief  to  the  husband.3  In  this  case,  the  settlement,  at  the  time  it 
was  made,  was  free  from  fraud.  The  marriage,  which  subsequently  took 
place,  occurred  but  a  few  days  after  the  intended  one  was  broken  off,  and 
upon  an  acquaintance  of  a  single  day.  The  omission  of  the  wife,  under 
those  circumstances,  to  communicate  to  the  husband  the  previous  settle- 
ment, was  no  fraud  upon  him. 

The  case  of  the  Countess  of  Strathmore  v.  Bowes,  last  cited,  was 
peculiar.  The  countess,  pending  a  treaty  of  marriage  with  Mr.  Grey,  con 
veyed  all  her  real  and  personal  estate  to  trustees,  for  her  sole  and  sepa- 
rate use,  notwithstanding  any  future  coverture,  which  settlement  was 
prepared  with  the  approbation  of  Mr.  Grey.  A  few  days  after  the  execu- 
tion, hearing  that  Mr.  Bowes  had  fought  a  duel  on  her  account,  with  an 
editor  of  a  newspaper  who  had  traduced  her  character,  she  determined  to 
marry  him,  and  the  marriage  took  place  the  next  day.  Bowes  had  no 
notice  of  the  settlement.  There  were  two  bills,  an  original  bill  by  Lady 
Strathmore  to  set  aside  a  deed  revoking  the  settlement,  as  having  beep 
obtained  by  duress,  and  a  cross-bill,  by  Mr.  Bowes,  to  set  aside  the  set- 
tlement as  against  the  right  of  marriage,  and  a  fraud  upon  him.  Lord 
Thurlow  remarked,  that  a  conveyance  by  a  wife,  even  a  moment  before  the 
marriage,  is  prima  facie  good  ;  and  becomes  bad  only,  upon  the  imputa- 
tion of  fraud.     "  If  a  woman,  daring  the  course  of  a  treaty  of  mar- 

1  Carleton  v.  Earl  of  Dorset,  2  Vern.  J  Countess  of  Strathmore  v.  Bowes,  ] 
17.    Ball  v.  Montgomery,  2  Ves.  jr.  194.    Ves.  jr.  27. 

3  Id. 


Cli.  T.J  Marriage  Settlements.  481 

ria^e  with  her,  makes,  without  notice  to  the  intended  husband,  a  convey- 
ance of  any  part  of  her  property,  I  should  set  it  aside,  though  good  prima 
facie,  because  affected  with  that  fraud."  And  his  lordship  concluded,  by 
observing,  that  it  was  impossible  for  a  man,  marrying  in  the  manner  Bowea 
did,  to  come  into  equity  and  talk  of  fraud.  In  a  later  case,  before  Lord 
Loughborough,  his  lordship  said,  that  if  a  woman,  previously  to  marriage, 
conveys  her  property,  without  the  privity  of  the  intended  husband,  it  will 
D3  fraud.1     And  the  same  doctrine  has  been  held  in  this  state.'2 

In  cases  where  the  settlement  is  made  by  the  wives  themselves,  the 
doctrine  resulting  from  the  cases  seems  to  be.  that  if  a  woman,  during  a 
treaty  of  marriage,  and  without  the  privity  of  her  intended  husband,  con 
veys  her  property  to  trustees  in  trust  for  her  separate  use,  and  at  the  same 
time  represents  to  her  intended  husband  that  he  should  have  the  complete 
dominion  over  it,  such  conveyance  would  be  deemed  fraudulent  and  void. 
as  against  the  husband.3  And  even  without  such  representation,  it  seems 
that  the  concealment  alone  of  the  fact  of  making  a  settlement,  pending 
the  treaty  of  marriage,  should  be  treated  as  a  fraud.4 

But  if  the  settlement  was  honest  and  proper  at  the  time  it  was  made. 
bein£  with  the  consent  of  her  intended  husband  ;  but  the  marriage  did  not 
take  place  ;  the  omission  to  disclose  the  fact  of  the  settlement  to  the  per- 
son to  whom  she  subsequently  married,  is  not  a  fraud  upon  him.  As 
Lord  Thurlow  said,  though  the  conveyance  had  been  made  with  a  view  to 
a  former  marriage,  which  had  not  taken  place,  and  though  it  would  have 
been  fraudulent  if  the  marriage  had  taken  place,  yet  it  would  not  be 
a  fraud  upon  any  other  husband,  although  the  fact  had  not  been  commu- 
nicated to  him.5 

It  is  probable  that  the  suddenness  of  the  match,  in  Lady  Strathmore 
v.  Bowes,  affording  no  time  to  communicate  the  condition  of  her  affairs, 
and  the  entire  absence  of  actual  fraud  in  the  wife,  together  with  the  im- 
provident haste  of  Bowes,  led  to  the  decision.  The  chancellor  said  there 
could  be  no  fraud  in  the  case  ;  and,  without  fraud,  there  was  no  occasion 
to  interfere.     It  cannot  otherwise  be  reconciled  with  other  cases. 

It  is  a  general  principle,  that  rights  dependent  on  the  nuptial  contract 

1  Ball  v.  Montgomery,  2  Yes.  jr.  194.  4  Draper's  case,  Freetn.  29.     2  Ye3.  jr. 

'  Wright  v.  Miller,  4  Barb.   608,  per  194. 

Strong,  P.  J.  6  Lady  Strathmore  v.  Bowes,  6  Br.  P. 

1  Oarleton  v.  Earl  of  Dorset,  2  Yern.  C.  427,  by  Tomlins.     Clanry's  Rights  ot" 

17.     2  Cox's  R.  33.  Women,  G18. 

Eq.  Jlr.  61 


482  Trusts.  [Ch.  7. 

are  to  be  determined  by  the  lex  loci  contractus,  at  least  so  far  as  relate* 
to  questions  of  property.1 

On  this  principle,  where  a  contract  of  marriage  between  French  citi- 
zens, executed  in  Paris,  contained  a  clause,  by  which  the  parties  mutually 
gave  to  each,  and  the  survivor,  all  the  estate  and  property,  acquired  and 
purchased,  or  belonging  to  either,  at  the  time  of  his  or  her  death,  to  be 
enjoyed  by  the  survivor  exclusively ;  and  the  husband  afterwards  aban- 
doned his  wife,  and  came  to  reside  in  New-York,  where  he  lived  many 
years ;  and  having  acquired  a  large  personal  estate,  died  intestate,  without 
lawful  issue,  leaving  his  wife  living  in  France,  it  was  held,  that  the 
wife  by  the  contract,  under  the  law  of  France,  took,  as  survivor,  all  the 
estate,  to  the  exclusion  of  the  husband's  relatives.2 

This  principle  has  been  applied  where  the  husband  only  was  a  citizen 
of  France,  and  the  wife  was  a  citizen  of  this  country.  In  one  case,  an 
ante-nuptial  contract,  executed  in  France,  in  conformity  to  its  laws, 
between  a  French  citizen  and  an  American  lady,  providing  that  if  tho 
gentleman  survived  her,  her  personal  estate  should  be  his,  and  her  real 
estate  should  be  sold,  and  the  proceeds  be  his,  was  held  to  be  valid,  and 
was  enforced  in  equity.3 

Where  natives  of  a  foreign  country,  residing  here,  enter  into  an  ante 
nuptial  contract,  with  reference  to  the  law  of  their  own  country,  to  whicl 
they  agree  to  return  and  reside,  and  in  the  contract  indicate  an  intention 
that  it  shall  be  governed  by  the  laws  of  such  country,  not  only  as  to  the 
property  then  possessed  by  them,  but  also  as  to  their  future  acquisitions,  a 
court  of  equity  will  enforce  it.  Chancellor  Walworth  says  :  :'  It  appears 
to  be  a  well  settled  principle  of  law,  in  relation  to  contracts  regulating 
the  rights  of  property  consequent  on  a  marriage,  so  far,  at  least,  as  per- 
sonal property  is  concerned,  that  if  the  parties  marry  with  reference  to 
the  laws  of  a  particular  place  or  country,  as  their  future  domicil,  the 
law  of  that  place  or  -country  is  to  govern,  as  the  place  where  the  contract 
is  to  be  carried  into  full  effect.  And  this  must  certainly  be  the  correct 
rule  where  the  marriage  contract  in  terms  refers,  to  the  intended  domicil 
of  the  parties  as  the  place  or  country  by  whose  laws  their  rights  under 
the  marriage  contract,  in  reference  to  property,  are  to  be  determined."4 
In  a  case  of  this  kind,  the  remedy  to  secure  such  property  and  to  pro- 

1  Deoouche  v.  Savetier,  3  J.  Ch.  E.  211.        a  Decoucbe  v.  Savetier,  supra. 
Hub.  De  Confl.  Leg.  lib.  3,  §  9.    Story's        3  De  Barante  v.  Gott,  6  Barb.  492. 
CorA  L.  §  HO.  *  Le  Breton  v.  Miles,  8  Paige,  265. 


Ch.  7. J  Wills.  483 

tect  the  rights  of  the  parties  to  the  contract  must  be  according  to  tho 
law  of  the  country,  in  the  courts  of  which  such  remedy  is  sought.1 

After  what  has  been  said,  under  the  head  of  fraud,  it  is  scarcely  neces 
sary  to  add,  that  though  the  consideration  of  marriage  is  a  meritorious 
consideration,  yet  a  voluntary  settlement  after  marriage,  unconnected  with 
any  valid  ante-nuptial  agreement,  by  a  person  indebted  at  the  time,  is 
fraudulent  and  void  as  against  creditors.2  And  this  is  true,  whether  the 
property  consists  of  lands  or  chattels.3  The  extent  and  qualification  of 
tin-  rule  belongs  to  another  part  of  this  treatise,  and  will  be  found  con- 
sidered in  its  proper  place. 

Other  matters,  with  respect  to  the  rights  of  the  wife,  will  be  noticed 
hereafter,  when  we  come  to  treat  of  the  subject  of  married  women.4 


SECTION  V 

OF    WILLS,    AND    THE    TRUSTS    THEREIN,    AND    OP    THE    RULES    OF    CONSTRUCTION 

THEREOF. 

Having  noticed  and  commented  upon  trusts  in  mortgages,  deeds, 
assignments,  and  marriage  settlements,  we  proceed  to  the  consideration  of 
such  express  trusts  as  are  usually  contained  in  wills.  These  are  some- 
times created  for  the  benefit  of  creditors,  sometimes  for  the  benefit  of 
u  or  other  relatives,  or  friends,  and  sometimes  for  public  charity. 
tinder  the  Revised  Statutes,  every  estate  and  interest  in  real  property, 
which  is  descendible  to  heirs,  is  devisable  by  will.s 

It  is  not  possible  to  embrace,  in  the  limits  of  this  chapter,  all  the  cases 
in  which  relief  in  equity  may  be  sought,  by  parties  deriving  interests 
under  wills.  A  few  only  will  be  adverted  to,  in  order  to  illustrate  the 
jurisdiction,  and  to  show  the  manner  which  equity  deals  with  questions 
of  this  nature. 

Before  the  Revised  Statutes  there  was  a  distinction  between  a  will  of 
real  estate,  and  a  will  of  personal  estate,  with  respect  to  the  operation  of 
the  instrument,  upon  the  subject  of  the  devise  or  bequest.     A  will  of 

Le  Breton  v.  Miles,   8  Paige,  265.  s  Bayard  v.  Hoffman,  4  J.  Ch.  R.  452. 

Jaques  v.  Methodist  Episcopal  Church,  3  *  Post,  Chap.  VIII,  Sec.  2. 

J.  Ch.  R.  77 ;  S.  C.  on  appeal,  17  J.  It.  >  2  R.  S.  57,  §  2.     1  R.  S.  725,  §  35. 

548.     Vail  v.  Vail,  7  Barb.  226.  Pond  v.  Bergh,  10  Paige,  140. 
*  Reade  v.  Livingston,  3  J.  Ch.  R.  4'.I2. 


484  Trusts.  [Ch.  7. 

lands  was  considered  in  the  nature  of  a  conveyance,  by  way  cf  appointment 
of  particular  lands  to  a  particular  devisee  ;  and  upon  that  principle,  a  man 
could  only  devise  the  lands  of  which  he  was  seised  at  the  date  of  the 
will ;  and  after  acquired  land  did  not  pass.1  He  must  not  only  be  seised 
at  the  time  of  making  the  will,  but  continue  so  seised  until  his  death.* 
But  a  will  and  testament  operated  upon  whatever  personal  estate  the 
testator  died  possessed  of,  whether  acquired  before  or  since  the  execution 
of  the  instrument.3  In  respect  to  personal  property,  the  testator  was 
presumed  to  speak  in  reference  to  the  time  of  his  death,  and  not  in  refer- 
ence to  any  prior  or  subsequent  period.4  The  Revised  Statutes  extended 
the  rule  applicable  to  wills  of  personal  estate,  to  devises  of  land,  where  the 
testator  in  express  terms,  or  in  any  other  terms,  denoted  his  intent  to  devise 
all  his  real  property.5  Hence,  since  the  statute,  a  will,  framed  according 
to  its  provisions,  must  be  construed  to  pass  all  the  real  estate  which  the 
testator  was  entitled  to  devise  at  the  time  of  his  death.  When  the  devise, 
in  such  case,  is  in  express  terms  of  all  the  real  estate  of  which  the  tes- 
tator shall  die  seised;  there  is  no  difficulty  in  applying  the  rule.  But 
if  the  testator  does  not  use  express  terms,  it  often  becomes  a  question, 
what  other  terms  will  be  equivalent  to  denote  the  intent  to  devise  all  tho 
testator's  real  property. 

In  one  case,  Chancellor  Walworth  .expressed  the  opinion,  that  our  stat- 
ute has  not  gone  to  the  extent  of  the  lateEnglish  statute  on  the  same 
subject.  That  statute  changed  the  rule  of  law  upon  this  subject  entirely, 
by  providing  that  every  will  shall  be  construed  with  reference  to  the  es- 
tate, whether  real  or  personal,  or  both,  comprised  in  it ;  to  speak  and  take 
effect  as  if  it  had  been  executed  immediately  before  the  death  of  the  tes- 
tator, unless  a  contrary  intention  shall  appear  by  the  \»11.  (Stat.  1  Yict. 
ch.  26,  §  24.  Sugd.  on  Wills,  172.)  Our  Revised  Stltutes  have  not  gone 
so  far  as  to  put  wills  of  real  estate  upon  the  same  footing  as  wills  of  per- 
sonal property  in  this  respect ;  though  they  have  unquestionably  abro- 
gated the  technical  rule,  that  the  testator  was  incapable  of  devising  an 
interest  in  land,  or  real  estate,  acquired  subsequent  to  the  date  of  the 
will  by  which  he  attempted  to  dispose  of  his  estate.6 

In  the  last  mentioned  case,  the  chancellor  took  a  distinction  between 
a  general  devise  of  all  the  testator's  real  estate,  and  a  devise  of  all  his 

1  Jackson  v.  Holloway,  7  J.  R.  394.  4  Van   Vechten  v.   Van  Veghten,  S 

Jackson  v.  Potter,  9  id.  312.     M'Kinnon  Paige,  104.      Collin  v.  Collin,    1    Barb, 

v.  Thompson,  3  J.  Ch.  K.  307.    Living-  Ch.  Pv.  630. 

elon  v.  Newkirk,  id.  312.  6  2  R.  S.  57,  §  5. 

3  M  in  use  v.  Cox,  5  J.  Ch.  R.  450.  •  Pond  v.  Bergh,  10  Paige,  149. 

8  Wind  v.  Jekyl,  1  P.  Wms.  575. 


Ch.  7.]  Wills.  485 

real  estate  at  a  particular  place,  or  within  a  particular  district  of  country. 
In  the  former  case,  he  admitted  that  all  the  real  estate  which  the  testator 
possessed  at  the  time  of  his  death  passed,  and,  in  the  latter,  nothing  passed 
but  what  was  specified.  The  chancellor  said,  that  the  New- York  statute, 
already  cited,  proceeds  upon  the  ground  that,  in  a  general  devise  of  all 
his  real  estate,  the  testator  has  reference  to  the  real  estate  as  it  shall 
exist  at  the  time  of  his  death  ;  and  that  such  a  construction  of  the  tes 
tamentary  disposition  of  his  property  will  be  but  carrying  his  intention 
into  effect.  Upon  the  same  principle,  therefore,  if  he  devises  all  the  real 
estate  of  a  particular  description,  of  which  he  shall  die  possessed,  or  which 
shall  belong  to  him  in  a  particular  town  or  county,  at  the  time  of  his 
death,  although  the  devise  would  not  be  within  the  Avords  of  the  section, 
(2  11.  S.  57,  §  5,)  it  not  being  a  general  devise  of  all  his  real  estate,  he 
thought  it  would  be  clearly  within  the  spirit  and  intent  of  this  statutory 
provision.  But  when  the  testator  devises  all  his  real  estate  at  a  par- 
ticular place,  or  within  a  particular  district  of  country,  there  was,  he 
thought,  good  reason  to  suppose  he  meant  to  speak  in  reference  to  the 
lands  he  had  already  acquired  there ;  and  that  if  he  intended  to  give  to 
the  devisee  all  the  lands  or  real  estate  which  he  should  afterwards  pur- 
chase at  that  place,  or  within  the  specified  district  of  country,  there  would 
be  something  in  his  will  indicating  such  an  intention.1 

The  New  York  statute  was  intended  not  only  to  abrogate  the  technical 
rule,  that  after  acquired  property  should  not  pass  under  a  general  devise 
of  all  the  testator's  real  property,  but  also  to  dispense  with  the  necessity 
of  words  of  limitation  in  a  devise,  in  order  to  pass  a  fee  simple.  In  this 
latter  respect,  Savage,  Ch.  J.,  in  one  case,  thought  the  section  in  question 
contained  merely  the  result  of  the  common  law  decisions  on  this  point*3 
Hence,  where  in  a  devise  there  are  no  words  of  perpetuity,  or  words  ex- 
pressive of  the  quantity  of  the  estate  devised,  but  merely  words  of 
description  of  the  thing,  and  no  charge  upon  the  devisee  in  respect  of  the 
estate  devised,  either  in  express  terms  or  by  necessary  implication,  the 
devisee  takes  only  a  life  estate.3  But  if  there  is  a  charge  upon  the  de- 
visee in  respect  of  the  estate  devised,  he  takes  a  fee,  upon  the  principle 
that  he  might  otherwise  be  a  loser.4  The  distinction  in  the  cases  is  be- 
tween a  charge  upon  the  estate,  and  a  charge  upon  the  devisee  in  respect 
thereof.     In  the  former,  the  devisee,  if  there  were  no  words   of  limita- 

1  Pond  r.  Bergh,  10  Taige,  150  ■  Van  Alstyne  v.  Spraker,  13  Wend.  5S2. 

5  Van  Alstyne  V.  Spraker,  13  Wend.  *  Id.  Jackson  v.  Bull,  10  J.  R.  14* 
G*2.  Mesick  v.  New,  3  Seld.  163. 


486  Trusts.  'Ch.  7 

tion,  took  only  a  life  estate,  and,  in  the  latter,  a  fee.1  And  this  rule  is 
not  supposed  to  be  altered  by  the  Revised  Statutes. 

Neither  before  or  since  the  Revised  Statutes  is  any  particular  form  of 
words  necessary  in  a  will,  to  pass  a  fee.  The  intention  of  the  testator, 
88  collected  from  the  whole  will,  is  to  govern.2  A  devise  of  all  one's 
light  carries  a  fe,:  simple  to  the  devisee.3  So  a  devise  with  power  to 
cooyey  in  fee  ;4  also  a  general  devise  of  real  estate  to  A.,  to  be  at  her 
absolute  disposal,  passes  a  fee.5  In  like  manner  the  word  estate  passes 
a  fee.6  But  when  a  devise  contains  no  words  of  limitation  or  perpetuity, 
the  devisee  can  take  only  an  estate  for  life.7  Such  was  the  rule  before 
the  statute,  and  Savage,  Ch.  J.,  considers  that  the  same  rule  remains  now.9 

There  are  numerous  cases  where  the  aid  of  a  court  of  equity  is  indis- 
pensable, in  carrying  into  effect  the  intention  of  a  testator,  in  the 
testamentary  disposition  of  his  property.  Thus,  where  a  testator 
charges  his  real  estate  with  the  payment  of  debts,  a  trust  is  cre- 
ated in  favor  of  the  creditors,  who  are  entitled  to  priority  over  other 
devisees  in  the  will.  And  a  court  of  equity  will,  in  an  action  by  tho 
creditors  against  the  executors  and  other  trustees,  if  there  be  any.  com- 
pel them  to  raise  the  money  for  payment  of  debts.9  If  the  court  would 
compel  them  to  sell  for  that  purpose,  there  can  be  no  doubt  they  may 
do  themselves,  without  an  order,  the  same  thing.10  The  charge  of  debts 
upon  an  estate  has  been  held,  by  eminent  jurists,  to  be  equivalent  to  a 
trust  for  the  payment  of  them.11  And  if  the  trustee  will  not  voluntarily 
do  his  duty,  it  is  competent  for  the  court,  as  in  other  cases  of  trusts,  to 
compel  him  to  do  it,  or  to  remove  him  and  appoint  another.  And  if 
there  be  no  trustee  named  in  the  will,  the  executors  will  be  treated  as 
trustees,  and  the  court,  as  has  been  repeatedly  held,  will  not  suffer  a 
trust  to  fail  for  the  want  of  a  trustee. 

If  the  will,  either  in  general  or  express  terms,  contains  a  power  to  sell 
for  the  payment  of  debts,  it  authorizes  the  giving  a  mortgage  to  raise 
money  for  the  same  purpose.     A  uower  to  sell  implies  a  power  to  mort- 

1  Jackson  v.  Bull,  10  J.  R.  151.     Good-  7  Jackson  v.  Wells,  9  J.  R.  222.    Jack- 

'itle  v.  Maddern,  4  East,  496.  Doe  v.  Snel-  son  v.  Erabler,  14  id.  198. 

ing,  5  id.  87.     Collier's  case,  6  Co.  16.  8  Van  Alstyne  v.  Spraker,  13  Wend 

Mesick  v.  New,  3  Seld.  163.  582. 

3  Jackson  v.  Babcock,  12  J.  R.  389.  9  Shaw  v.  Borrer,  1  Keene,  576. 

3  Newkirk  v.  Newkirk,  2  Caines,  345.  10  Id 

4  Doe  v.  Rowland,  7  Cowen,  277.  u  Bailey  v.  Ekins,  7  Ves.  319.     Sha* 
6  M'Lean  v.  M'Donald,  2  Barb.  S.  C.  R.  v.  Borrer,  supra.    Ball  v.  Harris,  4  My] 

534.  &  Cr.  267. 

6  Jackson  v.  Merrill,  6  J.  R.  185.    Jack- 
son v.  Delancy,  13  id.  537. 


Ch.  7.]  Wills      Charge  ox  Land.  487 

gage,  which  is  a  conditional  sale.'  The  same  rule,  it  seems,  applies  to  a 
trust  to  raise  money  out  of  an  estate  to  pay  debts.  It  would,  as  Lord 
Cottenham  remarked  in  the  last  case,  be  most  injurious  to  the  owners 
of  the  estate  charged,  if  the  trustee  could  effect  the  object  of  his  trust 
only  by  selling  the  estate.- 

Tt  sometimes  becomes  an  embarrassing  question  to  determine  by  what 
words,  or  form  of  expression,  an  effective  charge  in  favor  of  creditors 
may  be  made  in  a  will.  A  will  drawn  with  care,  and  by  a  skillful  drafts- 
man, will  no  doubt  use  express  and  unequivocal  terms,  conferring  thf 
power,  or  creating  the  trust,  and  declaring  by  whom  it  shall  be  executed 
And,  as  in  general,  the  personal  estate  is  the  primary  fund  for  the  pay- 
ment of  the  debts  of  the  testator,  and  the  executors  are  the  appropriate 
trustees  for  that  purpose,3  so  they  will  generally  be  the  persons  empow- 
ered to  sell  the  real  estate,  and  to  distribute  the  fund.  Creditors  at 
large  cannot  go  into  equity  to  compel  the  executors  to  pay  their  debts, 
upon  any  notion  that  such  debts  are  an  equitable  lien  on  the  estate. 
They  can  only  come  into  equity  for  an  account  and  discovery  of  assets, 
and  on  the  ground  of  a  trust  in  the  executor  or  administrator  to  pay 
debts.4 

But  where  plain  and  express  terms  are  not  used  charging  the  real  es- 
tate with  the  payment  of  debts,  resort  must  be  had  to  the  whole  will  to 
discover  the  intention.  Where  the  thing  directed  to  be  done  by  the 
executor  cannot  be  done,  without  the  sale  of  the  real  estate,  the  latter  is 
well  charged.5  The  words  in  a  will,  "  after  my  debts  and  funeral  charges 
are  paid  I  devise  and  bequeath  as  follows,"  will  charge  the  real  estate  for 
the  payment  of  debts,  if  there  be  not  personal  assets  enough  for  that 
purpose.6  In  an  early  case,  where  the  testator,  by  his  will,  used  these 
words  ;  "  My  debts  and  legacies  being  first  deducted,  I  devise  all  my 
estate,  both  real  and  personal,  to  J.  S."  These  words  were  held,  by  the 
chancellor,  to  amount  to  a  devise  to  sell  for  the  payment  of  the  testator's 
debts.7  In  a  case  before  Lord  Thurlow  in  1792,  it  was  said  that  a  decree, 
u  after  paying  debts,"  amounted  to  a  charge  upon  the  real  estate  for  the 
payment  of  debts,  and  it  was  intimated  that  the  leaning  of  the  court  was 

1  Mills  v.  Banks,  1  P.  Wms.  9.  Ball  v.  4  McKay  v.  Green.  3  J.  Ch.  R.  58. 
Harris,  4  Myl.  &  Cr.  267.  Anonymous,  3  Atk.  57:2. 

2  hi.  *  Bank  of  U.  S.  v.  Beverly,  1  Eow.  U.  S 
'  Hoes  v.  Van  Hoesen,  1  Barb.  Cb.  R.     149. 

27'.':  affirmed  on  appeal,  1  Couist.  121.  °  Fenwick  v.  Chapman,  9  Peters,  401. 

McKay  v.  Green,  3  J.  Cb.  R.  56.    IJawley  Peter  v.  Beverly,  10  id.  564. 

v.  James,  5  Paige,  3]S.     Harris  v.  Fly,  7  "  Newman  r.  Johnson,  1  Vern.  45. 
id.  421. 


4558  Trusts  [Ch.  7 

towards  the  upholding  of  such  a  charge.  And  in  a  later  case,  in  1798 
the  master  of  the  rolls  intimated  that  there  was  not  a  single  case  in  which 
it  had  been  held,  that  where  the  testator  says  "  after  payment  of  my 
debts,"  the  real  estate  is  not  charged,  whether  specifically  devised  or  not. 
The  words,  "  after  payment  of  my  debts,"  mean  that  he  will  not  give  any 
thing  until  his  debts  are  paid.  To  give  these  words  any  effect,  therefore, 
they  must  charge  the  real  estate.2  The  same  doctrine  was  held  in  an 
earlier  case.  The  testator,  by  his  will,  devised  that  his  debts,  legacies 
and  funeral  charges,  should  be  paid  in  the  first  place.  He  then  gave 
his  sister  a  life  estate  in  several  lands,  and  remainder  over.  It  was  held 
that  the  lands  were  well  charged  with  the  payment  of  debts.3 

As  the  personal  estate  is  the  primary  fund  for  the  payment  of  debts, 
the  real  estate  is  not  charged  unless  the  intention  to  charge  it  is  manifest 
by  the  will.  The  foregoing  cases  show  what  circumstances,  beyond  an 
express  charge,  will  be  enough  for  that  purpose.  It  is  not  sufficient  that 
debts  or  legacies  are  directed  to  be  paid.  That  alone  does  not  create  the 
charge,  but  they  must  be  directed  to  be  first,  or  previously  paid,  or  the 
devise  declared  to  be  after  they  are  paid.4  Where  the  personal  esta  te  is 
not  in  terms  exonerated,  and  is  not  absolutely  bequeathed  by  the  will,  it 
will  be  deemed  the  primary  fund  for  the  payment  of  legacies,  although 
the  legacies  are  expressly  charged  upon  devisees.  The  charge  in  such  a 
case  is  in  aid,  and  not  in  exoneration  of  the  personal  estate.5 

A  similar  question,  also,  often  arises  with  respect  to  legacies,  when  the 
aid  of  a  court  of  equity  is  necessary  to  enforce  the  payment  out  of  the 
testator's  real  estate.  Though  the  real  estate  be  charged,  still  the  per- 
sonal estate  is  the  primary  fund  for  the  payment  of  legacies,  and  is  to 
be  first  applied,  before  charging  the  real  estate  ;6  unless,  indeed,  a  con- 
trary intention  is  manifested  by  the  will.7  The  devisee  of  real  estate, 
charged  with  a  legacy,  is,  if  he  accept  the  devise,  in  equity  personally 
liable  for  the  payment  of  the  legacy.  If  he  sells  the  land,  the  purchaser 
is  entitled  to  insist  that  the  legatee  shall  first  exhaust  his  remedy  against 
the  devisee  personally,  and  also  against  the  personal  estate  of  the  testa- 
tor, when  that  is  the  primary  fund,  before  selling  the  real  estate.8 

"Where  a  legacy  is  made  a  specific  lien  upon  land,  and  the  devisee  has 


Kidney  v.  Cousmaker,  1  Yes.  jr.  440.        i  Hoes  v.  Van  Hoesen,  1  Comst.  120. 
5  Shallcross  v.  Finden,  3  Ves.  jr.  739.     1  Barb.  Ch.  R.  379. 
■  Trott  v.  Vernon,  2  Vern.  708.  6  McKay  v.  Green,  3  J.  Ch.  R.  56.  Lup. 

4  Lupton  v.  Lupton,  2  J.  Ch.  E.  624.    ton  v.  Lupton,  2  id.  614. 
Rrudenell  v.  Boughton,  2  Atk.  268.  7  Kelsey  v.  "Western,  2  Comst.  501. 

8  Id. 


Cli.  7.J  Wills.     Charge  on  Land.  489 

sold  it  in  parcels  to  different  purchasers,  the  lots  will  be  charged  in  the 
inverse  order  of  their  alienation. 

The  charge  of  a  legacy  upon  real  estate,  in  aid  or  in  exoneration  of  the 
personalty,  may  be,  and  frequently  is,  created  by  implication  merely.  If 
the  testator  gives  a  legacy,  without  specifying  who  shall  pay  it,  or  out  of 
what  fund  it  shall  be  paid,  the  legal  presumption  is,  that  he  intend  3d  it 
should  be  paid  out  of  his  personal  estate  only  ;  and  if  that  is  not  suffi- 
cient, the  legacy  fails.  So,  if  he  directs  his  executors  to  pay  a  legacy, 
without  giving  to  them  any  other  fund  than  the  personal  estate  out  of 
which  they  can  pay  it.  But  where  the  real  estate  is  devised  to  the  per- 
son who  by  the  will  is  directed  to  pay  the  legacy,  it  has  frequently  been 
decided  that  such  legacy  is  an  equitable  charge  upon  the  real  estate  so 
devised,  although  the  devisee  is  also  the  executor,  or  is  the  residuary  leg- 
atee of  the  personal  estate ;  unless  there  is  something  in  the  will  itself 
to  indicate  a  contrary  intention  on  the  part  of  the  testator.12 

In  cases  where  an  equitable  charge  upon  land  devised  is  created  by 
the  will  of  the  testator,  a  subsequent  purchaser  from  the  devisee,  who  is 
obliged  to  make  title  to  the  premises  through  the  will,  has  constructive 
notice  of  the  charge,  and  takes  the  land  subject  to  it.3 

There  are  cases  where  a  devise  is  made  upon  condition  that  the  devisee 
should  pay  certain  legacies.  In  this  case,  should  the  devisee  decline  ac- 
cepting the  estate,  he  would  not  be  liable  to  pay  the  legacies,  but  the 
estate  would  descend  to  the  heirs,  chargeable  in  equity  with  their  pay- 
ment.4 In  this  case,  it  seems,  the  only  remedy  of  the  legatee  is  in  a  court 
of  equit}7.  If,  however,  the  devisee  accepts  the  devise,  he  becomes  per- 
sonally liable  for  the  legacies  ;  notwithstanding  which  the  legacies  are  eaji 
equitable  charge  upon  the  estate.  These  principles  are  illustrated  by  the 
case  already  cited.  The  case  was  this  ;  a  testator  devised  certain  real 
estate  to  his  widow  for  life,  or  during  her  widowhood,  and  after  her  death, 
or  marriage,  devised  the  same  to  his  nephew  in  fee,  provided  he  paid  the 
legacies  mentioned  in  the  will,  and  directed  that  the  legacies  should  be 
paid  by  the  nephew,  his  heirs,  executors  or  administrators,  whenever  he 
or  they  should  come  into  possession  of  the  premises  devised  ;  it  was  held 
that  a  payment  of  the  legacies  was  a  condition  of  the  devise  ;  and  that 
if  the  devisee  or  his  heirs  should  refuse  to  accept  the  devise,  the  estate 

:  Jenkins  v.  Freyer,  4  Paige,  47.     El-        3  Ilarris  v.  Fly,  7  Paige,  421. 
wood  v.  Deifendorf,  5  Barb.  398.  4  Birdsall  v.  Ilew'ett,  1  Paige,  32. 

5  Harris  v.  Fly,  7  Paige,  425.     Alcock 
v.  Sparhawk,  2  Vein.  228. 

l^y    Jin.  62 


490  Trusts.  [Ch.  7. 

would  descend  to  the  heirs  at  law  of  the  testator  ;  but  would,  in  equity, 
be  char  eable  with  the  payment  of  the  legacies.1 

The  construction  of  wills  often  presents  embarrassing  questions,  which 
call  for  the  interposition  of  a  court  of  equity  to  expound.  Bequests  of 
personal  estate  fall  under  the  denomination  of  trusts.  In  the  eye  of  a 
court  of  equity,  executors  and  administrators  are  considered  as  trustees, 
and  the  persons  to  whom  bequests  are  made,  as  the  cestui  que  trusts,  and 
in  that  character  are  peculiarly  entitled  to  the  protection  of  courts  of  equity. 
With  respect  to  the  undisposed  residue,  the  executors  are  the  trustees  for 
the  next  of  kin.  And  it  is  upon  this  notion  of  a  trust  that  the  equitable 
jurisdiction  is  founded,  of  enforcing  payment  of  legacies  and  the  distri- 
bution of  personal  estates.2  Incidental  to  this  jurisdiction  over  trusts, 
is  the  duty  of  giving  the  true  construction  of  wills,  and  of  compelling 
their  execution  by  the  executors,  or  other  persons  to  whom  a  duty  in  re- 
lation thereto  is  confided. 

It  is,  therefore,  consistent  with  the  plan  of  this  treatise,  that  a  brief 
review  of  some  of  the  rules  of  construction,  by  which  both  courts  of 
law  and  equity  are  governed  in  matters  of  this  nature. 

The  cardinal  rule  in  this  respect  is,  that  the  intention  of  the  testator 
is  to  govern,  if  consistent  with  the  rules  of  law ;  that  is,  the  testator 
cannot  create  a  trust  which  the  law  prohibits,  or  suspend  the  power  of 
alienation,  or  the  absolute  ownership  of  property,  beyond  the  period 
allowed  by  law  ;  nor  create  any  other  interest  in  property  which  the  law 
repudiates.  The  testator  is  to  be  presumed  to  have  used  words  in  their 
natural  or  primary  sense,  unless  there  is  something  in  the  situation  of 
his  family  or  in  his  will  to  lead  to  a  contrary  conclusion.  But  he  is  not 
bound  to  use  any  particular  form  of  words,  to  devise  or  bequeath  a  legal 
interest  in  property,  or  to  designate  the  objects  of  his  bounty  ;  provided 
he  uses  language  sufficient  to  show  his  intention.  That  intention  is  to 
be  ascertained  from  the  whole  will  taken  together,  and  not  from  the 
language  of  any  particular  provision  or  clause,  when  taken  by  itself. 
And  for  the  purpose  of  construction,  a  will  and  a  codicil  may  be  con- 
sidered  together,  and  construed  as  different  parts  of  the  same    vill.3 

1  Birdsall  v.  Hewlett,  1  Paige,  32.  home,  id.  181.    Berry  v.  Heacftington,  3 

9  Farrington  v.  Knightly,  1  P.  Wms.  J.  J.  Marsh.  321.     Covenboven  v.  Sbuler, 

645,  note  1  at  pp.  550,  551.  2  Paige,  122.     Reno's  Ex'rs  v.  Davis,  4 

3  Hone  v.  Van  Schaick,  3  Barb.  Ch.  R.  Hen.  &  Mura.  283.    Cowper  v.  Cowper, 

448,  505,  506.     Crone  v.  Odell,  1  Ball  &  2  P.  Wms.  741.     Dobbins  v.  Bowman,  3 

B.  466.     1  Rob.  on  Wills,  355.    Land  v.  Atk.  409.     Westcott  v.  Cady,  5  J.  Ch  R 

Otley,  4  Rand.  213.     Calloway  v.  Lang-  343. 


Ch.  7.1  Wills.     Construction.  401 

Thus,  the  word  "  and"  may  be  understood  disjunctively  for  "  or,'  and  "  or" 
for  "  and,"  when  it  is  clear  such  was  the  intention  of  the  testator.1 

When  the  words  of  one  part  of  a  will  are  capable  of  a  twofold  con- 
struction, that  should  be  adopted  which  is  most  consistent  with  the  inten- 
tion of  the  testator,  as  ascertained  by  other  provisions  in  the  will.  And 
when  the  intention  is  incorrectly  expressed,  the  court  will  effectuate  it  by 
supplying  the  proper  words.  The  strict  grammatical  sense  is  not  always 
regarded,  but  the  words  of  a  will  may  be  transposed  to  make  a  limita- 
tion sensible,  or  to  carry  into  effect  the  general  intent  of  the  testator.2 
So  one  name  may  be  substituted  for  another,  in  the  construction  of  a 
will,  when  it  is  manifest,  not  only  that  the  name  used  was  not  intended, 
but  that  a  certain  other  name  was  necessarily  intended.3  This  class  of 
cases  are,  perhaps,  appropriately  referrible  to  the  head  of  mistake,  but 
they  are  applicable  also  under  the  head  of  construction,  which  we  are  now 
considering.  Thus,  where  a  testator  after  bequeathing  several  specific 
legacies,  bequeathed  the  residue  as  follows :  Thirdly,  I  bequeath  to  my 
brother  Cormac  Connolly,  and  to  my  two  sisters  Mary  and  Ann.  what- 
ever remains  of  my  money  after  the  above  bequests,  to  be  divided  between 
them,  share  and  share  alike  ;  and  in  case  of  the  demise  of  either  of  them, 
to  go,  share  and  share  alike,  to  the  survivor  or  survivors."  On  the  fol- 
lowing day  he  made  a  codicil  to  the  will,  and  thereby,  among  other  things, 
bequeathed  as  follows :  "  To  my  nephew,  Cormac  Connolly,  the  son  of 
my  brother  Cormac  Connolly,  the  sum  of  five  hundred  dollars  for  his 
ecclesiastical  education,  which  sum  is  to  be  taken  from  what  I  have 
bequeathed  to  my  brother  Cormac,  and  to  my  sisters  Mary  and  Ann." 
The  testator  never  had  a  brother  named  Cormac,  but  he  had  a  nephew 
of  that  name,  the  son  of  his  brother  James,  who,  at  the  time  of  making 
the  will,  was  pursuing  classical  studies  in  Ireland,  with  a  view  to  an 
ecclesiastical  education,  and  he  was  the  only  nephew  of  the  same  name. 
An  amicable  suit  was  instituted,  to  which  the  executors  and  persons 
named  in  the  will  were  parties.  The  chancellor  decided  that  the  resid- 
uary bequest  in  the  will  was  intended  for  the  testator's  brother  James, 
the  father  of  the  testator's  nephew,  Cormac  Connolly. 

This  case  affords,  also,  an  apt  illustration  of  the  rule  already  stated, 
that  the  codicil  and  will  must  be  construed  together,  in  order  to  ascer- 
tain the  intent  of  the  testator.     By  viewing  them  in  connection,  it  is  per- 

1  Dobbins  v.  Bowman,   3   Atk.   409.    Thellusson  v.    (Voodford,    11    Ve?.   148. 
O'Brien  v.  FTeeney,  2  Edw.  Ch.  R.  242.      Bradburst  v.  Bradburst,  1  Paige,  343. 
'  Covenhoven  v.  Sbuler  2  Paige,  130.        3  Connolly  v.  Pardon,  1  Paige,  891, 


492  Trusis.  [Oh.  li 

fectly  obvious  that  the  brother  was  the  residuary  .egatee,  and  not  the 
nephew.1 

If  a  legacy,  said  the  chancellor  in  the  same  case,  was  given  by  a  tes- 
tator to  his  brother  John,  and  it  turned  out  in  evidence  that  he  had  but 
one  brother,  whose  name  was  James,  there  could  be  no  doubt  that  the  lat- 
ier  would  be  entitled ;  because  the  description  of  brother  in  that  case 
would  alone  be  sufficient,  and  the  name  might  be  rejected  as  surplusage 
Chancellor  Kent,  in  one  case,  went  further,  and  permitted  a  person  not 
named,  or  described  at  all  in  the  will,  to  take  a  legacy,  upon  evidence 
that  she  was  the  person  intended,  there  being  no  person  of  the  name  men- 
tioned in  the  will.  In  that  case,  the  testatrix  evidently  was  mistaken  in 
the  name  of  the  legatee.  The  bequest  was  given  to  Cornelia  Thompson, 
in  the  will,  when  it  was  shown  that  Caroline  Thomas  was  intended.2 
In  cases  of  this  nature,  the  object  of  an  action  in  equity  is  not,  as  in  the 
case  of  a  mistake  in  agreements,  to  reform  the  instrument,  but  it  is  to 
give  to  it  such  construction  as  Avill  fulfill  the  purpose,  and  carry  out  the 
intent  of  the  testator. 

Nor  is  the  court,  in  the  construction  of  a  will,  restricted  to  the  order 
in  whidi  the  words  are  set  forth  in  the  instrument,  nor  to  strict  gram- 
matical rules.  To  effectuate  the  intent,  words  may  sometimes  be  trans- 
posed, supplied,  or  rejected.3 

With  respect  to  the  meaning  of  technical  words,  it  is  said  that  prima 
facie  they  are  to  be  understood  in  their  legal  sense,  unless  by  the  con- 
text, or  by  express  words,  they  plainly  appear  to  be  intended  otherwise.4 
But  the  court  will  abide  by  the  settled  meaning  of  the  words,  until  driv- 
en out  by  strong,  solid  and  rational  interpretation  put  upon,  and  plain 
inference  drawn  from,  the  rest  of  the  will.5 

If  the  words  of  a  will  be  such  that  they  may  be  construed  in  two  dif- 
ferent senses,  one  of  which  would  render  the  disposition  made  of  the 
property  illegal  and  void,  and  the  other  would  render  it  valid,  the  court 
should  give  that  construction  to  the  language  that  will  make  the  disposi- 
tion of  the  testator's  property  effectual.6 

So  where  a  will  contains  distinct  and  independent  provisions,  devising 

1  Connolly  v.  Pardon,  1  Paige,  291.        1  Russ.  R.  165.     Doe  v.  Micklem,  6  East, 

2  Thomas  v.  Stevens,  4  J.  Ch.  R.  607;  486.  Fonereau  v.  Fonereau,  3  Atk.  315. 
S.  P.,  Beaumont  v.  Fell,  2  P.  Wms.  141.    Doe  v.  Starlake,  12  East,  515. 

Brad  win  v.  ITarpur,  Ambl.  374.     Co  wen  *  Holloway  v.  Hollo  way,  5  Ves.  401. 

A  Hill's  Notes,  1368,  1369.  6  Deane  v.  Test,  9  Ves.  152,  154. 

s  East  v.  Cooke,  1  Ves.  32.     Pond  v.  6  Butler  v.  Butler,  3  Barb.  Ch.  R.  310 

Bergh,  10  Paige,  140.     Marshall  v.  Hop-  Mason  v.  Jones,  2  Barb.  S.  C.  R.  230. 
kins,  15  East,  309.    Montagu  v.  Xucella, 


Ch.  7.]  Wills.     Construction.  493 

different  portions  of  the  testator's  property,  or  distinct  estates  or  inter- 
ests in  the  same  portions  of  the  property,  some  of  which  provisions  are 
consistent,  and  others  inconsistent  with  the  rules  of  law,  the  former  will 
be  permitted  to  stand,  although  the  latter  are  declared  illegal  and  void  ; 
unless  the  different  provisions  are  so  dependent  on  each  other,  that  they 
cannot  be  separated.  And  where  real  estate  is  conveyed  upon  two  or 
more  trusts,  some  of  which  are  legal  and  the  others  are  void,  or  unauthor- 
ized by  law,  the  legal  estate  will  pass  to  the  trustee,  so  far  as  is  neces- 
sary for  the  purposes  of  the  authorized  trusts ;  notwithstanding  the 
provision  of  the  statute  which  declares,  that  where  an  express  trust  shall 
be  created  for  any  purpose  not  authorized  by  law,  no  estate  shall  vest  in 
the  trustee.1 

Full  effect  should  be  given  to  the  particular  intent,  as  well  as  to  the 
general  intent  of  the  testator,  so  far  as  his  particular  intent  can  be 
ascertained  by  the  will,  and  as  is  consistent  with  the  rules  of  law,  and 
with  his  general  intent ;  which  general  intent  must  control  in  a  will a 

It  sometimes  happens  in  wills  that  there  are  clauses  inconsistent  with 
each  other,  and  in  which  both  cannot  take  effect.  In  such  a  case,  it  be- 
comes the  duty  of  the  court  to  select  one  or  the  other.  In  analogy  to 
the  fact  that  the  last  will  of  a  testator  is  to  prevail  in  preference  to 
an  earlier  one,  the  courts  have  adopted  from  necessity  a  similar  rule,  and 
treated  the  subsequent  words  in  the  will  as  indicating  a  subsequent  in- 
tention ;  unless,  indeed,  there  be  other  expressions  of  the  will  which  make 
it  apparent  that  the  first  should  take  effect.3 

With  regard  to  the  use  of  words,  not  technical  in  their  nature,  the  tes- 
tator must  be  presumed  to  have  used  them  in  their  ordinary  or  primary 
sense,  unless  it  appears  from  the  context  that  Ire  probably  used  them  in 
some  other  sense ;  or  unless,  by  reference  to  extrinsic  circumstances,  the 
use  of  the  words,  in  their  primary  sense,  would  render  the  provision  of 
the  will  insensible  or  inoperative.4  The  application  of  this  rule  to  the 
legatee,  when  not  designated  by  name,  is  sometimes  necessary,  as  well  as 
to  the  other  language  of  the  will.  Thus,  the  word  "  children  "  is  sonic- 
times  used  as  descriptive  of  the  persons  who  are  to  enjoy  the  testator's 
bounty.  This  word,  in  its  ordinary  sense,  does  not  include  grandchildren. 
But  it  may  include  them  when  it  appears  there  were  no  persons  who 

1  Parks  v.  Parks,  9  Paige,  107.     Leg-  Swan,  4  Mass.  R.  215.     Sweei  v.  Uiaso, 

gett  v.  Perkins,  2  Conist.  297,  306.  2  Corast.  73,  per  Ruggles,  J. 

*  Parks  v.  Parks,  supra.  "  Mowatt  v  Carow,  7  Paige,  339.  "Wig- 

*  Sims   v.   Doughty,    5  Ves.    jr.   247.  ram  on  Wills,  29. 
Constantino  v.  Constantine,   C   id.  102. 

Parka  v.  Parks,  9  Paige,  124.     Dawes  v. 


494  Trust*  [Ch.  7 

would  answer  to  the  description  of  "  children  "  in  the  primary  sense  of 
the  term,  or  where  there  could  not  be  any  such  at  the  time  or  in  the 
event  contemplated  by  the  testator  ;  or  where  the  testator  has  clearly 
shown,  by  the  use  of  other  words,  that  he  used  the  term  children  as  syn- 
onymous with  issue  or  descendants.1 

The  word  "  children,"  in  its  natural  sense,  is  a  word  of  purchase,  and 
;iot  a  word  of  limitation.2  The  rule  in  Shelley's  case  was  applied  to 
limitations,  in  which  the  word  "heirs  "  is  used,  which,  on  account  of  its 
peculiar  signification,  and  upon  the  maxim  that  no  one  is  an  heir  to  the 
living,  was  construed  as  giving  the  fee  to  the  devisee  for  life,  when  a  re- 
mainder was  limited  to  his  heirs.  We  have  already  explained  this  rule 
sufficiently  in  the  former  part  of  this  chapter,  and  its  abrogation  by  the 
Revised  Statute.  But  that  rule  was  a  technical  one,  and  did  not  apply 
where  other  words  were  used  to  designate  the  persons  to  take  in  remain- 
der after  a  life  estate.  If  an  express  devise  of  lands  be  given  to  one  for 
life,  remainder  to  his  so?is,  or  his  children,  and  their  heirs,  the  devisee 
takes  an  estate  for  life  only,  and  the  sons  or  children,  and  not  the  father, 
take  the  residue  of  the  estate  in  fee,  by  way  of  remainder.3 

Where  the  estate  is  not  limited  to  the  father  for  life  with  remainder  to 
his  children,  the  construction  of  the  will  varies  according  to  circum- 
stances. If  the  devisee,  in  such  a  case,  has  children  at  the  time  of  making 
the  will  of  the  testator,  it  has  been  held  that  he  takes  a  joint  estate  with 
his  children.4  But  when  there  are  no  children  in  esse,  at  the  time  of 
making  the  will,  the  word  children,  in  a  devise  to  a  man  and  his  children, 
has  sometimes  been  construed  a  word  of  limitation  merely,  so  as  to  create 
an  estate  tail  in  the  devisee.5 

In  like  manner  the  word  issue,  though  sometimes  construed  as  a  wore 
of  limitation,  yet,  in  wills,  for  the  purpose  of  giving  effect  to  the  in  ten 
tion  of  the  testator,  it  has  generally  been  construed  as  a  word  of  pur- 
chase.6 

It  sometimes  happens  that  a  will  is  ambiguous  in  its  terms,  and  the 
true  construction  of  it  cannot  be  made  without  the  aid  of  a  court  of  equity. 
An  important  question  then  arises,  whether  the  ambiguity  can  be  ex- 
plained by  a  resort  to  parol  evidence,  or  whether  it  must  be  determined 

1  Mo  watt  v.  Carow,  7  Paige,  supra.  4  Oates  v.  Jackson,  2  Str.  1172.  Matter 
Hone  v.  Van  Schaick,  3  Barb.  Ch.  K.  488.  of  Sanders,  4  Paige,  297. 

2  In  the  matter  of  Sanders,  4  Paige,  5  Id.  Wilde's  case,  6  Coke,  16.  Ead- 
296.  cliff  v.  Buckley,  10  Yes.  195. 

'  Id.  Rogers  v.  Rogers,  3  "Wend.  503.  6  Champlin  v.  Haight,  10  Paige,  274; 
4  Cruise's  Dig.  tit.  32,  ch.  23,  §  30.  S.  C.  on  appeal,  7  Hill,  246,  per  BroD- 

son,  J. 


Ch.  7. J  Ambiguity.  495 

solely  by  a  resort  to  other  parts  of  the  will.  This  question  depends  on 
the  nature  of  the  ambiguity,  cf  which,  according  to  Lord  Bacon,  there 
are  two  sorts.  The  one  is  called  a  latent  and  the  other  a  patent  ambi- 
guity. The  first  occurs  where  the  deed  or  instrument  is  sufficiently  cer- 
tain and  free  from  ambiguity;  but  the  ambiguity  is  produced  by  evidence 
of  something  extrinsic,  or  some  collateral  matter  out  of  the  instrument : 
the  latter  kind  is  such  as  appears  in  the  instrument  itself.1 

A  latent  ambiguity,  which  is  raised  by  extrinsic  evidence,  may  be  ex- 
plained in  the  same  manner.  Thus,  if  a  person  grant  his  manor  of  S.  to 
one  and  his  heirs,  so  far  there  appears  no  ambiguity  ;  but  if  it  should 
be  proved  that  the  grantor  has  the  manors  both  of  south  S.  and  north  S., 
this  ambiguity  is  matter  of  fact,  and  parol  evidence  may  be  admitted  to 
6how  which  of  the  two  manors  the  party  intended  to  convey.2 

A  patent  ambiguity  is  such  as  appears  on  the  face  of  the  instrument 
itself.  In  many  of  these  cases  the  apparent  uncertainty  may  be  removed 
by  collecting  the  general  intention  from  other  parts  of  the  instrument,  so 
as  to  make  the  whole  consistent,  and  this  is  a  legitimate  mode  of  explain- 
ing the  ambiguity.3  But  when,  after  comparing  the  several  parts  of  a 
written  instrument,  and  collecting  all  the  lights  which  the  writing  itself 
supplies,  the  intention  of  the  parties  still  appears  to  be  uncertain,  parol 
evidence  of  their  intention  is  not  admissible.4  The  reason  of  this  rule, 
as  explained  by  Lord  Bacon,  is,  that  the  law  will  not  couple  and  mingle 
matter  of  specialty,  which  is  of  the  higher  account,  with  matter  of  aver- 
«  cut,  which  is  of  inferior  account  in  law  ;  for  that  were  to  make  all  deeds 
hblloWj  and  subject  to  averment,  and  so,  in  effect,  to  make  that  pass  with- 
out deed,  which  the  law  appoints  shall  not  pass  but  by  deed.  It  holds, 
generally,  he  adds,  that  all  ambiguity  of  words  within  the  deed,  and  not 
out  of  the  deed,  may  be  helped  by  construction,  or  in  some  cases  by  elec- 
tion, but  never  by  averment,  but  rather  shall  make  the  deed  void  for  un- 
certainty.5 The  same  rule  governs  in  the  case  of  a  will.  If  any  devise 
is  expressed  doubtfully  and  with  uncertainty,  the  only  construction  which 
it  is  capable  of  receiving,  is  by  comparing  it  with  the  other  parts  of  the 
will  ;  and  declarations  of  the  testator  are  not  admissible  to  remove  the  ap- 
parent ambiguity,  or  to  explain  his  intention.  As  was  said  by  the  master 
cf  the  rolls,  in  one  case,  if  a  meaning  can  be  collected,  but  if  it  is  left 


1  1  Phil.  Ev.  531.     Bac.  Elem.,  rule 23.  Ch.  R.  234.    Storcr  v.  Freeman,  6  Mass. 

'  Id.     Breckenridge  v.  Duncan,  2  A.  K.  E.  440. 

Marshall,  51.  *  1  Phil.  Ev.  538. 

3  Mann  v.  Mann,  14  J.  R.  1 ;  S.  C,  1  J.  •  Bac.  Elem.,  rule  23. 


496  Trusts.  [Ch.  7. 

doubtful  in  what  manner  it  is  to  take  effect,  the  court  has  often  no  re- 
course but  to  declare  the  -will  totally  void  for  uncertainty.1 

But  though  these  general  rules  are  well  settled,  yet  the  application  of 
them  to  existing  cases  is  not  always  free  from  difficulty.  A  latent  am 
biguity  sometimes  relates  to  the  person  of  the  legatee,  and  sometimes  to 
the  subject  of  the  bequest ;  but,  in  either  case,  if  the  doubt  be  created  by 
extrinsic  evidence,  it  may  be  removed  in  the  same  way. 

The  rule,  however,  which  excludes  parol  evidence  to  explain  a  patent  am- 
biguity in  a  deed  or  will,  should  not  be  carried  to  the  extent  of  shutting 
out  evidence  of  the  situation  and  circumstances  of  the  parties,  for  the  pur- 
pose of  assisting  them  in  putting  a  construction  on  wills  that  are  not 
clearly  expressed.2  Thus,  for  example,  should  the  testator  devise  an  es- 
tate for  life,  without  saying  for  whose  life,  it  would  be  important  to  know 
what  estate  he  had  in  the  property  devised.  For  if  he  bad  only  a  life  es- 
tate, a  different  interest  will  pass  from  what  would  follow  if  he  were  seised 
in  fee.  The  testator  would  not  be  presumed  to  devise  a  greater  estate 
than  he  had  himself.3  So  if  a  man  bequeath  £10,000,  3  per  cent  con- 
sols, it  will  be  a  specific  legacy,  if  he  have  that  stock  at  the  time  ;4  not 
specific  if  he  have  it  not.  Evidence  is  thus  far  admissible  in  such  case 
to  show  what  was  the  state  of  his  property  at  the  time  he  made  his  will, 
.nnd  the  construction  upon  the  will  is  one  way  or  the  other,  according  to 
the  result.5  These,  and  numerous  other  cases  which  may  be  put,  tend  to 
show  the  necessity  of  extrinsic  evidence,  with  respect  to  persons  and 
things,  in  order  to  a  correct  understanding  of  the  bequest ;  and  it  has  led 
some  to  suppose  that  there  is  an  intermediate  class  of  ambiguities,  com- 
prising those  instances  where  the  words  are  equivocal,  but  yet  admit  of 
precise  and  definite  application,  by  resorting  to  the  circumstances  under 
which  the  instrument  was  made.6  The  master  of  the  rolls,  in  one  case, 
seemed  to  think  that  a  patent  ambiguity  admitted  of  explanation  by  ex- 
trinsic evidence.  "  When,"  he  observed,  "  the  person  or  the  thing  is  de- 
signated on  the  face  of  the  instrument,  by  terms  imperfect  and  equivocal 
admitting  either  of  no  meaning  at  all  by  themselves,  or  of  a  variety  of 
different  meanings,  referring  tacitly  or  expressly  for  the  ascertainment  and 

1  Constantine  v.  Constantine,  6  Yes.  3  1  Shep.  Touch.  88.  Smith  v.  Doe,  2 
102.  Strode  v.  Russell,  2  Vern.  624.  2  Brod.  &,  Bing.  550,  see  opinion  of  Bay- 
Cowen  &  Hill's  Notes,  1359  et  seq.  where    ley,  J. 

many  cases  are  reviewed.  *  Id.     Selwood  v.  Miltlmay,  3  Yes.  310. 

2  Druce  v.  Deunison,  6  Yes.  396.   Judd        6  Smith  v.  Doe,  supra. 

v.Pratt,  13  id.  174.     Benough  v.  Walk-        6  2  Cowen  &  Hill's  Notes  to  Phil.  Ev. 
er,  15  id.  514.     Herbert  v.  Reid,  16  id.    135S, 
481.     Page  v.  Leapingwell,  18  id.  466. 


Ch.  7.J  Ambiguity.  <r97 

completion  of  the  meaning  to  extrinsic  circumstances,  it  has  never  been 
considered  an  objection  to  the  reception  of  the  evidence  of  those  circum- 
stances, that  the  ambiguity  was  patent,  manifested  on  the  face  of  the  in- 
strument. When  a  legacy  is  given  to  a  man  by  his  surname,  and  the 
christian  name  is  not  mentioned  ;  is  not  that  a  patent  ambiguity  ?  Yet 
it  is  decided  that  evidence  is  admissible.  So  where  a  gift  is  of  the  testa- 
tor's stock,  that  is  ambiguous  ;  it  has  different  meanings  when  used  by  a 
farmer  and  a  merchant.'" 

In  considering  this  question,  Spencer,  Ch.  J.,  on  one  occasion  said :  It 
appears  to  be  good  law,  that  though  an  ambiguity  is  apparent  on  the  face 
of  an  instrument,  it  cannot  be  explained  by  extrinsic  evidence  ;  yet,  when 
a  question  arises  as  to  the  general  intention  of  the  parties,  concerning 
which  the  instrument  is  not  decisive,  proof  of  independent  facts,  collateral 
to  the  instrument,  may  be  properly  admitted.2  While  conceding  that  no 
evidence  of  an  expressed  intention  can  be  received  to  explain  an  ambi- 
guity on  the  face  of  the  instrument,  and  thereby  to  make  that  valid, 
which  of  itself  would  not  avail ;  yet  he  said  that,  in  other  cases,  both  spe 
cies  of  ambiguity  are  open  to  explanation  by  parol  evidence  ;  and  that 
even  in  the  case  of  a  will,  where  the  testator  makes  use  of  terms  of  equiv- 
ocal import,  though  his  declarations  are  not  admissible,  yet  the  circum- 
stances of  his  family  and  fortune  may  be  proved  and  taken  into  consider- 
ation, in  order  to  enable  the  court  to  put  a  construction  upon  his  words. 

It  would  seem  that  the  learned  judge  thought  that  a  patent  ambiguity 
might  in  some  cases  be  explained  by  the  proof  of  extrinsic  facts,  but  not  by 
showing  the  expressed  intention  of  the  party  by  whom  the  instrument 
was  made.  It  may  be  doubted  whether  a  resort  to  extrinsic  evidence,  to 
show  the  condition  of  things,  where  the  instrument,  whether  a  deed  or 
will,  was  made,  can  be  properly  called  an  explanation  of  the  instrument 
itself,  in  the  sense  contemplated  by  the  rule.  Such  evidence  does  not 
tend  to  contradict  the  words  of  the  instrument,  but  by  putting  the  court 
in  the  place  of  the  party  by  whom  it  was  made,  together  with  the  sur- 
rounding circumstances,  it  enables  it  to  understand  the  language  in  the 
same  sense  as  the  framer  of  it  intended.  If  both  the  court  and  the  tes- 
tator, for  example,  can  view  the  provisions  of  the  will  from  the  same  point 
of  observation,  they  will  be  apt  to  understand  it  alike.  To  do  this,  is  all 
that  is  intended  by  introducing  evidence  of  the  state  of  the  testator's  cir- 
cumstances and  condition  when  the  will  was  made.  The  case  relied  on  by 
the  court,  in  Ely  v.  Adams,  was  clearly  one  of  a  latent  ambiguity,  and 

1  Colpoys  v.  Colpoys,  Jacob,  451.  King  r.  Inhabitants  of  Laindon,  8  T.  Jl. 

'  Ely  v.  Adams,   19  J.  R.  317.     The    379. 
Eg.  Jcu.  63 


498  Trusts.  |Ch.  7. 

open  to  explanation  upon  the  strictest  principles,  and  the  case  itse.f, 
moreover,  afforded  intrinsic  evidence  of  the  parties'  intention.'  So  also, 
the  cases  put  in  Colpoys  v.  Colpoys,  were  of  a  latent  ambiguity.2 

It  has  already  been  shown,  under  this  general  head,  that  executory 
trusts  created  by  will  are  governed  by  the  same  rules  which  prevail  in  re- 
lation to  the  like  trusts  created  by  deed.3  And  we  have  pointed  out,  in 
the  same  place,  the  changes  introduced  by  the  Revised  Statutes,  which 
are  alike  applicable  to  executory  trusts  created  by  wills  and  deeds.  It 
will  not  be  consistent  with  the  plan  of  this  treatise  to  pursue  this  branch 
of  the  subject  more  at  large. 


SECTION  VI. 

OF  LEGACIES  ;  THE  GROUNDS  OF  THE  JURISDICTION  OF  COURTS  OF  EQUITY ; 
AND  THE  DIFFERENT  KINDS  OF  LEGACIES,  WHETHER  GENERAL,  DEMON- 
STRATIVE   OR    SPECIFIC,    AND    OF    ADEMPTION    OF    LEGACIES. 

As  the  jurisdiction  of  courts  of  equity  over  legacies  is  referable  to 
their  general  jurisdiction  over  trusts,4  and  as  legacies  are  given  by  a  will 
in  writing,  except  in  the  case  of  donatio  mortis  causa,  which  is  in  the 
nature  of  a  legacy,  rather  than"  a  strict  legacy,  it  will  be  expedient  to 
consider  the  subject  •  of  legacies ;  and  to  point  out  briefly  the  different 
kinds  of  legacies,  and  the  nature  and  extent  of  the  jurisdiction  by  which 
they  are  enforced. 

A  legacy  is  defined  to  be,  "  some  particular  thing  or  things  given  or 
left,  either  by  a  testator  in  his  testament,  wherein  an  executor  is  appoint- 
ed, to  be  paid  or  performed  by  his  executor  ;  or,  in  a  codicil  or  last  will, 
wherein  no  executor  is  appointed,  to  be  paid  or  performed  by  an  admin- 
istrator."5 

The  word  devise  is  appropriated  to  a  gift  of  lands,  and  the  word  legacy 
to  a  gift  of  chattels,  though  both  terms  are  used  promiscuously.  The 
word  legacy  may  apply  to  real  estate,  if  the  intent  so  require,6  and  a  tes- 

1  Cole  v.  Wendell,  8  J.  R.  116.  Cowen  4  Wend  v.  Jekyl,  1  P.  Wms.  575.  Far- 
&  Hill's  Notes,  1360  et  seq.  rington  v.  Knightly,  id.  544. 

2  Mann  v.  Mann,  1  J.  Ch.  R.  234.  6  2  Will.  Ex.  694.     Godolp.  pt.  3,  cb. 
s  Ante.     Countess  of  Lincoln  v.  The    1,  §  1.     2  Bl.  Com.  512. 

Duke  of  Newcastle,  12  Ves.  227,  per  Ld.  6  Jackson  v.  Housel,  17  J.  R.  281. 
Eldon.  Attorney  Gen.  v.  Sutton,  1  P.  Lasher  v.  Lasher,  13  Barb.  S.  C.  R.  109 
Wins.  754.  110. 


Ch.  7.]  Legacies.  49$ 

tator's  real  estate  has  been  held  to  pass  under  a  will  bequeathing  his 
personal  estate.1 

Formerly  a  will  or  testament  of  chattels  was  good,  though  its  publica- 
tion was  not  attested  by  any  witnesses,  provided  sufficient  proof  could  be 
procured  that  it  was  subscribed  by  the  testator,  or  made  according  to  his 
instructions.2  But  now,  in  this  state,  by  the  Revised  Statutes,  wills  oi 
real  and  personal  estate  are  put  upon  the  same  footing,  in  relation  to  the 
mode  in  which  they  are  to  be  executed.3  But  with  respect  to  the  person 
capable  of  making  a  will,  it  is  provided  that  every  male  of  the  age  of 
eighteen  years  or  upwards,  and  every  female  not  being  a  married  woman, 
of  the  age  of  sixteen  years  or  upwards,  of  sound  mind  and  memory,  may 
give  and  bequeath  his  or  her  personal  estate  by  will  in  writing/  The 
power  of  devising,  or  making  a  will  that  shall  pass  the  testator's  real 
estate,  is  given  to  all  persons,  except  idiots,  persons  of  unsound  mind, 
married  women  and  infants,5 

In  New- York  the  surrogate's  court  has  a  qualified  jurisdiction  to  decree 
the  payment  of  legacies.6  But  as  that  court  is  one  of  limited  jurisdic- 
tion, and  as  legacies  are  frequently  connected  with  trusts  which  that 
court  cannnot  enforce,  it  would  seem,  in  general,  that  a  court  of  equity, 
which  in  all  cases  of  legacies  has  concurrent  jurisdiction,  should  be 
resoited  to  in  the  first  instance. 

The  former  statute  law  of  this  state,  and  the  Revised  Statutes  more 
fully,  have  conferred  upon  courts  of  law  a  jurisdiction,  in  certain  cases,  to 
enforce  the  payment  of  legacies.7  But  the  consideration  of  the  remedies 
in  a  court  of  law,  and  before  the  surrogate,  does  not  belong  to  the  present 
treatise.  The  jurisdiction  of  a  court  of  equity  in  this  matter  is  not 
impaired  by  any  of  the  statutes,  and  it  will  be  found,  in  general,  to  afford 
the  most  complete  remedy  in  all  cases  ;  and  the  exclusive  remedy,  when 
the  execution  of  complicated  trusts  is  involved.  In  addition  to  this,  as 
was  shown  in  a  former  part  of  this  work,  when  a  legacy  is  payable  at  a 
future  day,  an  executor  may  be  compelled  to  bring  the  money  into  court, 
or  to  give  security;8  and  equity  will  marshal  the  assets  in  favor  of 
legatees,  as  between  them  and  the  heir,  or  creditors  having  liens.*     The 


Doe  v.  Tofield,  11  East,  246.    Wall  v.        6  2  R.  S.  91,  §§  43,  47.    Id.  116,  §  16. 

Langlands,  14  id.  370.    Roe  v.  Patter-  Id.  96,  §  75. 
ton,  16  id.  221.  7  2  R.  S.  114,  450  et  seq.     1  R.  L.  of 

*  2  Bl.  Com.  501,  502.    Watts  v.  Pub-  1813,  p.  314,  §  19.    De  Witt  v.  Schoon- 
Sc  Adra.  4  Wend.  168.  maker,  2  J.  R.  243.     11  Paige,  87. 

*  2  R.  S.  63,  §  40.  8  Luptcn  v.  Lupton,  2  J.  Ch.  R.  614. 

'  Id.  60,  §  21.  ■  Livingston  v.  Livingston,  3  J  Ch.  R 

1  Id.  56,  §  1.  148. 


500  Trusts.  [Ch.  7 

remedy  in  these  respects,  in  a  court  of  law  and  in  the  surrogate's  court 
is  imperfect  and  defective.  It  is  adequate  only  in  plain  cases,  in  which 
there  is  no  other  trust  but  to  pay  the  legacy.' 

Nor  can  an  action  at  law  be  sustained  to  recover  a  legacy,  until  the 
executor  has  assented  to  it.  Until  such  assent  be  given,  the  title  of  the 
legatee  is  incomplete.  This  results  from  the  general  principle  that  all 
the  property  of  the  testator,  which  the  law  denominates  assets,  to  be 
applied  and  distributed  as  the  personal  estate  of  the  testator  or  intestate,2 
devolves  upon  the  executor,  as  the  representative  of  the  testator,  upon 
trust  in  the  first  place  to  discharge  the  testator's  debts.3  The  whole 
personal  estate  is  thus  in  the  first  instance  to  be  applied,  and  the  execu- 
tor is  responsible  to  the  creditors  for  the  satisfaction  of  their  demands, 
to  the  extent  of  the  whole  estate,  without  regard  to  any  direction  in  the 
testator's  will  to  the  contrary.  This  assent  is  defined  to  be  the  agreement 
of  an  executor  or  administrator  that  a  legatee  shall  have  the  thing 
bequeathed  unto  him.  And  it  is  either  express  or  implied  ;  the  former, 
when  the  executor  or  administrator,  by  express  words,  agrees  to  the 
legacy,  and  the  latter,  when  the  executor  or  administrator  does  not  by 
words,  but  by  some  overt  act,  declare  his  assent  that  the  legatee  sha  11 
have  the  thing  bequeathed  to  him.4 

The  assent  of  the  executor  or  administrator  is  not  necessary  in  the 
case  of  a  devise  of  land.  It  is  required  only  in  the  case  of  a  bequest 
of  chattels,  either  real  or  personal.5  From  the  nature  of  the  case,  it  is 
only  required  when  the  bequest  is  of  such  things  as  are  assets  in  the 
hands  of  the  personal  representatives  for  the  payment  of  debts. 

If  there  be  many  executors,  the  assent  of  any  one  or  more  of  them  is 
sufficient.6 

But  though  an  action  at  law  cannot  be  maintained  against  an  executor 
for  a  legacy,  until  he  has  assented  to  it,  unless  there  be  some  statutory 
regulation  to  the  contrary,  yet  a  court  of  equity  could  always  enforce 
payment  of  a  legacy,  after  it  became  payable,  if  there  be  sufficient  assets, 
whether  the  executor  assented  or  not.7  This  is  merely  compelling  the 
executor,  who  with  respect  to  the  legatees  is  a  trustee,  to  execute  his 
trust,  which  is  the  appropriate  province  of  a  court  of  equity. 

If  a  legacy  be  charged  on  real  estate,  it  seems  no  action  at  law  can  be 
sustained  to  enforce  it,  but  the  remedy  is  exclusively  in  a  court  of  equity.* 

1  Stagg  v.  Jackson,  2  Barb.  Ch.  R.  86.        •  Shep.  Touch.  456. 

2  2  R.  S.  82,  §  6.  T  Day  v.  Trig,  1  P.  Wms.  287. 

•  2  R.  S.  87,  §  25.    1  Will.  Ex.  411.  "  Pelletreau  v.  Rathbone,  18  J.  R.  42  & 

4  S&ep.  Touch.  455.  Livingston  v.  Livingston,  3  id.  R.  189. 


Ch.  7.]  Legacies.  50l 

Nor  can  an  action  at  commor  law  be  maintained  for  a  legacy  in  a  court 
of  law.  In  the  leading  case,  where  this  question  was  directly  involved,1 
it  was  said  by  Lord  Kenyon,  that  no  action,  till  lately,  (except  one  in  the 
time  of  the  commonwealth,)  has  been  supported  for  a  legacy  in  a  court 
of  law,  and  he  thought  the  upholding  such  action  would  be  attended  with 
the  most  pernicious  consequences.  The  reason  why  such  action  was 
maintainable  at  common  law,  at  the  time  of  the  commonwealth,  was,  that 
at  that  time  the  ecclesiastical  courts  which  had  the  exclusive  jurisdiction 
of  legacies  were  abolished,  and  the  court  of  chancery  did  not  assume  ju- 
risdiction till  the  time  of  Lord  Nottingham.  There  would,  therefore, 
have  been  a  failure  of  justice,  had  courts  of  law  declined  jurisdiction. 

But  there  are  numerous  other  reasons  why  equity  is  the  proper  tribu- 
nal in  these  cases.  If  the  legacy  be  to  a  married  woman,  the  husband, 
if  an  action  at  law  would  lie,  could  get  possession  without  making  pro- 
vision for  his  wife.  In  such  a  case  a  court  of  equity  looks  to  the  interest 
of  the  wife,  and  will  not  permit  the  husband  to  obtain  the  legacy  without 
making  suitable  provision  out  of  it  for  the  wife  and  her  children.2 

It  is  not  denied  that  an  executor  may  make  himself  personally  liable 
to  an  action  at  law,  by  a  special  promise  to  pay  a  legacy.  Such  promise 
is  an  admission  of  assets.3 

Since  the  time  of  Lord  Nottingham,  the  jurisdiction  of  courts  of  equity 
over  legacies  has  not  been  questioned  ;  and  in  cases  where  the  legatee  is 
proceeding  to  recover  the  legacy  in  a  court,  where  full  redress  and  pro- 
tection to  all  persons  interested  cannot  be  given,  courts  of  equity  will 
restrain,  by  injunction,  proceedings  in  the  subordinate  court,  and  draw  to 
its  own  jurisdiction  the  whole  subject  matter.  Where  the  legacy  is  a 
charge  upon  land,  it  follows  the  rule  of  the  common  law,  and  was  not  cog- 
nizable in  the  spiritual  court  in  England,  and  is  not  cognizable  in  the 
surrogate's  court  in  this  state,  except  in  peculiar  cases.  Where  the  will 
directs  real  and  personal  estate  to  be  sold  by  the  executors,  and  makes 
but  one  fund  of  the  real  and  personal  property  of  the  testator  for  the  pur- 
poses of  the  will,  it  seems  the  statute  is  broad  enough  to  give  the  surro- 
gate jurisdiction  of  the  whole  matter.4 

But  where  the  legacy  is  merely  personal,  the  court  follows  the  rule  of 
the  civil  law.  because   personal  legacies  were  properly  cognizable  in  the 


1  Deeks  and  Wife  v.  Strutt,  5  D.  &  E.  3  Childs  v.   Monins,  2  Brod.  &,  Bing. 

667-690.  400.     De  Witt  v.  Schoon maker,  2  J.  R. 

•  Id.     Brown  v.  Elton,  3  P.  Wins.  202.  243.     Beecker  v.  Beecker,  7  J.  R.  99. 

Howard  v.  Moffat,  2  J.  Ch.  R.  206.  *  Stagg  v.  Jackson,  2  Barb.  Ch.  R.  86. 


502  Trusts.  [Ch.  7 

spiritual  court,  and  equity  always  considered  itself  as  bound  to  follow  the 
rules  of  that  court,  to  which  the  jurisdiction  properly  bolonged.1 

The  foregoing  observations  are  enough  to  illustrate  the  jurisdiction  of 
eourts  of  equity  over  legacies,  and  the  grounds  on  which  it  rests.  Inde- 
pendent of  the  question  of  trusts,  which  of  itself  is  an  ample  source  of  ju- 
risdiction, there  are  other  elements  which  often  enter  into  the  question, 
such  as  the  necessity  of  a  discovery  of  assets,  an  injunction  against  a  mis- 
application thereof,  and  an  account  of  the  administration. 

It  will  be  convenient  in  this  place  to  add  some  observations  on  the  dif 
ferent  kinds  of  legacies,  and  some  of  the  incidents  to  which  they  are 
subject. 

Legacies,  with  respect  to  their  subject  matter,  are  either  general  or 
specific  ;  with  regard  to  the  interest  acquired  by  the  legatee,  they  are 
vested  or  contingent :  and  with  regard  to  the  certainty  of  enjoyment, 
they  are  absolute  or  conditional.  General  legacies  are  sometimes  called 
'pecuniary  legacies.  A  legacy  of  quantity  is  ordinarily  a  general  legacy ; 
but  there  are  legacies  of  quantity  in  the  nature  of  specific  legacies  ;  as  of 
so  much  money,  with  reference  to  a  particular  fund  of  payment.  This 
kind  of  legacy  is  called  by  the  civilians  a  demonstrative  legacy  ;  because 
it  points  to  a  fund  out  of  which  satisfaction  may  be  made.  It  partakes 
of  the  nature  of  general  legacies,  in  this,  that  if  the  fund  pointed  out 
fails,  the  legatee  is  entitled  to  resort  to  other  portions  of  the  estate ;  and 
it  is  so  far  specific  that  it  will  not  be  liable  to  abate  with  general  legacies 
on  failure  of  assets.2  All  legacies  may  be  reduced  to  one  or  the  other  of 
the  above  kind ;  and  we  will  consider  together  general  and  specific 
legacies 

A  legacy  is  said  to  be  general  when  it  is  so  given  as  not  to  amount  to 
a  bequest  of  any  particular  thing,  or  money  of  the  testator,  distinguished 
from  all  others  of  the  same  kind.  A  legacy  is  specific  when  it  is  a  be- 
quest of  a  specified  part  of  the  testator's  personal  estate,  which  is  so  dis- 
tinguished.3 Thus,  for  example,  a  legacy  of  a  diamond  ring  is  a  general 
legacy,  which  may  be  fulfilled  by  the  delivery  of  any  ring  of  that  kind: 
while  a  legacy  of  a  diamond  ring  presented  to  me  by  A.  is  a  specific  leg- 
acy, and  can  only  be  satisfied  by  the  delivery  of  the  identical  subject.4 
Where  the  testator  devises  to  his  wife  all  his  personal  estate  at  W.,  thia 
is  a  specific  legacy,  and  is  the  same  as  if  he  had  enumerated  all  the  par- 


1  Reynish  v.  Martin,  3  Atk.  333.  ■  Bradford  v.  Haynes,  7  Maine  R.  105. 

s  Coleman  v.  Coleman  2  Ves.  jr.  640,  *  2  Fonb.  B.  4,  pt.  1,  ch.  2,  §  5.    2  Will 

per  Lord  Loughborough.    Robert  v.  Po-  Ex.  739. 
cock,  4  Ves.  100. 


Ch.  7.J  Legacies.  503 

ticulars  there.1  So  a  bequest  of  all  the  testator's  right,  interest  and  prop- 
erty in  thirty  shares  of  the  Bank  of  the  United  States,  is  a  specific  legacy.8 
So  a  bequest  of  "  the  proceeds  of  a  bond  and  mortgage  I  hold  against  S." 
is  a  specific  legacy.3  So  a  bequest  of  S.  of  the  amount  of  his  bond  and 
mortgage  to  the  testator,  is  a  forgiveness  of  the  debt,  or  a  specific  legacy 
and  not  a  pecuniary  legacy.4 

The  distinction  between  general  and  specific  legacies  is  of  the  utmost 
importance  ;  for  as  it  will  appear  more  fully  hereafter,  if  there  be  a  defi- 
ciency of  assets,  a  specific  legacy  will  not  be  liable  to  abate  with  general 
legacies ;  while  on  the  other  hand,  if  the  specific  legacy  fail  by  the 
ademption  or  inadequacy  of  its  subject,  the  legatee  will  not  be  entitled  to 
any  recompense  or  satisfaction  out  of  the  general  personal  estate.  So 
though  specific  legacies  have  in  some  respects  the  advantage  of  those  that 
are  general,  yet  in  other  respects  they  are  distinguished  from  them  to 
their  disadvantage.5 

There  are  two  kinds  of  gifts  included  under  the  description  of  specific 
legacies.  The  first  is  where  a  particular  chattel  is  specifically  described 
and  distinguished  from  all  other  things  of  the  same  kind ;  and  the  second, 
where  something  of  a  particular  species  is  bequeathed,  which  the  executor 
may  satisfy  by  delivering  something  of  the  same  kind,  as  a  horse,  a  dia- 
mond ring,  &c.  The  first  kind  may  perhaps  be  more  properly  called  an 
individual  legacy ;  and  if  the  thing  so  bequeathed  be  not  found  among 
the  testator's  effects,  it  fails.6  It  is  to  the  first  kind  that  the  doctrine  of 
ademption  applies.  If,  for  an  example,  a  specific  debt  be  given,  and  the 
testator  in  his  lifetime  receive  payment  of  the  debt,  the  legacy  is  gone.7 
But  this  doctrine  of  ademption  does  not  apply  to  the  second  class,  where 
the  legacy  is  rather  demonstrative,  and  merely  points  to  the  fund  out  of 
which  it  is  to  be  paid.8 

A  legacy  of  quantity  is  ordinarily  a  general  legacy  ;  but  there  are  leg- 
acies of  quantity,  in  the  nature  of  specific  legacies  ;  as  of  so  much  money, 
with  reference  to  a  particular  fund  for  payment.  This  kind  of  a  legacy 
is  called  by  the  civilians  a  demonstrative  legacy,  and  it  is  so  far  general, 
and  it  differs  so  much  in  effect  from  one  properly  specific,  that  if  the  fund 

1  Sayer  v.  Sayer,  2  Vern.  688.  6  2  Fonb.  Eq.  B.  4,  pt.  1,  oh.  2,  §  5, noteo. 

a  Walton  v.  Walton,  7  J.  Ch.  R.  262.  Selwood  v.   Mildmay,   3  Yes.  jr    310. 

•Gardner  v.  Printup,  2  Barb.  S.C.R.83.  Purse  v.  Snaplin,  2  Atk.  416. 

4  Sholl  v.  Sholl,  5  Barb.  312.  '  Walton  v.  Walton,  7  J.  Ch.  E  262. 

6  Ashton  v.  Ashton,  3  P.  Wms.  884.  Id. 
Walton  v.  Walton,  7  J.  Ch.  E.  267. 


604  Trusts.  [Ch  7 

be  called  in,  or  fail,  the  legatee  will  not  be  deprived  of  his  legacy,  bu 
be  permitted  to  receive  it  out  of  the  general  assets.1 

In  a  recent  case  the  rules  on  this  subject  were  thus  applied  by  the  su- 
preme court,  in  the  following  case  :  The  will  of  the  testator  contained  this 
legacy  :  "  My  wife  having  now  in  her  possession  eight  hundred  and  fifty 
dollars,  I  direct  my  executor  to  pay  her  one  hundred  and  fifty  dollars 
more,  so  as  to  make  her  the  sum  of  one  thousand  dollars;  my  meaning 
and  intention  is  to  give  her  one  thousand  dollars."  This  was  held  to  be 
a  general  legacy  of  one  thousand  dollars ;  eight  hundred  and  fifty  dollars 
jf  it,  referred  to  as  being  in  the  hands  of  the  legatee,  being  demonstra- 
tive, and  the  onus  lay  with  the  executor  to  show  that  the  legatee  had  at 
the  death  of  the  testator  that  sum  in  her  hands.  And  it  was  held  further, 
that  if  the  testator  in  his  lifetime  withdrew  the  said  sum  of  $850,  and 
invested  it  in  a  different  way,  it  did  not  operate  as  an  ademption  of  the 
legacy.2  # 

The  courts  are  in  general  averse  from  construing  legacies  to  be  spe- 
cific ;  and  the  intention  of  the  testator  that  they  should  be  so,  must  be 
clear.3  If,  says  Chancellor  Kent,  there  be  the  least  opening  to  imagine 
the  testator  meant  to  give  a  sum  of  money,  and  referred  to  a  particular 
fund  only,  as  that  out  of  which  he  meant  it  to  be  paid,  it  shall  be  con- 
strued pecuniary,  so  that  the  legacy  may  not  be  defeated  by  the  destruc- 
tion of  the  security.'1 

The  cases  both  in  the  English  and  American  books  turn  often  upon 
nice  and  shadowy  distinctions  between  a  general  and  specific  legacy  ;  and 
it  must  be  conceded  that  they  cannot  all  be  reconciled. 

As  the  leaning  of  the  courts  is  thus  towards  the  construction  which  will 
render  the  legacy  general,  rather  than  specific,  it  is  incumbent  on  the 
party  claiming  the  legacy  to  be  specific,  to  show  such  unequivocal  expres- 
sions in  the  will,  as  will  leave  no  room  to  infer  an  intention  that  the 
legacy  should  be  general.  Bank  stock,  government  securities,  bonds  and 
mortgages,  and  the  like,  are  frequently  the  subject  of  specific  bequest. 
When  they  are  so  clearly  indicated  as  to  distinguish  them  from  all  other 
things  of  the  like  kind,  and  the  corpus  is  given,  and  it  is  not  merely 

1  Enders  v.  Enders,  2  Barb.  S.  C.  R.  S.  0.   Wilcox  v.  Rhodes,  2  Russ.  452.    3 

366.     Touch.  433.    2  Will.  Ex.  790.     El-  Cond.  Ch.  R.  195,  S.  0. 
lis  v.  Walker,  Ambl.  310.    Chaworth  v.        2  Enders  v.  Enders,  supra. 
Beach,  4  Ves.  555.    Gillaume  v.  Adder-        3  Ellis  v.  Walker,  Ambl.  310.    Fcote. 

ly,  15  Ves.  384.    Mann  v.  Copland,  2  appellant,  22  Pick.  302.     Briggs  v.  Hos- 

Mad.  Ch.  R.  223.    Fowler  v.  Willoughby,  ford,  id.  209.    Enders  v.  Enders,  2  Barb. 

I  Sim.  &  Stu.  354.    1  Cond.  Ch.  R.  493,  S.  C.  R.  367. 

«  Walton  v.  Walton.  1  J.  Ch.  R.  a&S. 


Ch.  7.J  Legacies.  505 

pointed  to  as  the  source  from  which  satisfaction  of  the  legacy  can  ht 
obtained,  it  is  specific. 

In  the  earlier  cases  the  rule  seems  to  have  been,  when  stock  was 
bequathed,  that  if  the  testator  owned  the  stock  described,  at  the  time  of 
making  the  will,  the  bequest  must  be  considered  specific.  Thus,  in  an 
early  case,1  the  testator  bequeathed  to  his  two  daughters  "  two  thousand 
seven  hundred  and  two  pounds  three  shillings,  capital  stock  in  the  Bank  of 
England,  and  two  thousand  pounds  sterling  capital  stock  in  the  English 
East  India  Company,  to  be  equally  divided  between  them."  At  the  time 
of  making  the  will  the  testator  had  the  precise  amount  of  each  kind  of 
stock  mentioned  in  the  will,  but  before  his  death  sold  seven  hundred  and 
two  pounds  three  shillings  of  his  bank  stock,  so  that  at  his  death  he  had 
only  two  thousand  pounds  of  each  kind  of  stock.  The  legatees  insisted 
that  the  legacies  were  general,  and  that  they  had  a  right  to  have  the 
amount  made  up  out  of  the  residue  of  the  personal  estate  of  the  testator. 
On  the  other  hand  the  executors  insisted  that  the  legacies  were  specific, 
and  that  the  sale  by  the  testator,  in  his  lifetime,  of  a  portion  of  the  bank 
stock,  was  an  ademption  pro  tanto  of  the  legacy.  The  court  so  held, 
upon  the  ground  that  the  testator  had  the  identical  stock  bequeathed  at 
the  time  the  will  was  made.  In  this  case  there  was  no  other  circum- 
stance appearing  on  the  face  of  the  will  to  indicate  an  intention  that  the 
legacies  were  specific,  than  the  possession  by  the  testator,  at  the  time  he 
nade  his  will,  of  the  identical  corpus  or  subject  of  the  legacy;  and  that 
was  held  enough  for  that  purpose.  This  doctrine  seems  to  have  been 
followed  or  recognized  in  many  other  cases.2  It  has  also  been  followed 
in  Massachusetts.3  In  some  of  the  cases  there  was  no  additional  circum- 
stance to  raise  or  qualify  the  intention  of  the  testator.  It  was  presumed, 
because  the  testator  had  the  precise  thing  which  he  bequeathed,  that 
the  bequest  was  a  specific  bequest  of  that  thing,  and  that  the  legacy  was 
adeemed  by  the  destruction  of  the  thing,  or  by  the  testator's  parting  with 
it  before  his  death.  Ademption  is  a  necessary  incident  to  a  specific 
legacy.  By  parting  with  the  thing  bequeathed  in  his  lifetime,  the  tes- 
tator indicates  an  intention  that  the  legacy  shall  fail.  But  independently 
of  intention,  the  ademption  is  in  general  a  rule  of  law,  and  the  legacy  ia 
gone,  with  the  destruction  of  its  subject,  or  its  ceasing  to  be  a  part  of  tho 
testator's  effects.     But  this  rule,  however,  does  not  apply  to  the  variation 

■  Jeffereys  v.  Jeffereys,  3  Atk.  120.  9  Ves.   360.    Ashton   v.  Asliton,  3   P 

*  Selwood  v.  Mildmay,  8  Ves.  jr.  310.  "Wins.  384. 

Ashburner  v.  McGuire,  2  Bro.  Ch.  R.  108.  3  White  v.  Winchester,  6  Pickering,  4a 

Badrick  v.  Steven.*,  8  id.  481.     Innes  v.  Foot©,  appellant,  22  id.  299. 
Johnson,  4  Y69.  501).     Fryer  v.  Morris, 

Kg.  J uk.  64 


506  Trusts.  [Ch.  7 

of  the  testator's  interest  in  the  thing  bequeathed,  produced  by  operation 
of  law,  and  without  any  act  on  his  part  indicating  an  intention  to  adeem 
the  legacy.1  Thus,  where  the  bequest  was  of  bank  shares  in  the  Bank 
of  the  United  States,  the  charter  of  which  expired,  and  the  funds  were 
conveyed  to  trustees,  those  funds  retained  the  character  of  the  original 
bequest,  and  were  substituted  for  it.2 

On  the  other  hand,  there  are  cases  which  hold  that  the  mere  possession 
by  the  testator,  at  the  date  of  his  will,  of  stock,  &c.  of  equal  or  larger 
amount  than  the  legacy,  will  not  make  the  bequest  specific  when  it  is 
given  generally  of  stocks  or  annuities,3  or  of  stocks  or  annuities  in  or  out 
of  particular  funds,4  without  further  explanation.  The  distinction  goes 
upon  the  ground  that  the  testator  meant  only  to  direct  his  executor  to 
purchase,  with  his  general  estate,  so  much  stock,  &c.  in  the  fund  described. 
And  therefore  the  description  fails  to  have  that  precise  character  which 
seems  to  be  essential  to  a  specific  legacy.  So  a  legacy  of  £1000  out  of 
my  reduced  bank  annuities  is  held  a  general  pecuniary  legacy,  and  njt 
specific.5  Such  a  legacy  is  at  most  a  demonstrative  legacy  ;  or  in  other 
words,  it  is  in  the  nature  of  a  specific  legacy.  It  points  to  the  fund  out  of 
which  it  is  to  be  made,  but  is  not  a  specific  legacy  of  the  fund  itself. 

The  doctrine  that  the  mere  possession  by  the  testator  of  the  exact 
thing  bequeathed,  at  the  time  of  making  the  will,  does  not  of  itself  con- 
stitute a  specific  legacy,  was  carried  to  its  furthest  extent  in  a  recent  case 
in  the  New- York  court  of  appeals.6  In  that  case,  the  testator,  at  the 
date  of  his  will  and  at  his  death,  was  the  owner  of  360  shares  of  bank  stock 
standing  in  his  name  in  the  Cayuga  County  Bank.  He  gave  by  his  will 
the  whole  of  that  stock,  to  his  wife  and  a  female  relative.  The  language  of 
the  will  was  thus  :  "  Second,  I  give,  devise  and  bequeath  unto  my  wife  U.  S., 
240  shares  of  bank  stock  in  the  Cayuga  County  Bank,  at  Auburn  ;  also  all 
my  household  furniture,  booki,  wearing  apparel.  All  of  which  property  and 
bank  stock  above  mentioned  are  to  be  delivered  to  her  as  soon  as  may  be 
after  letters  testamentary  shall  have  been  granted  and  issued  on  this  will, 
and  in  lieu  of  dower.  Third,  I  give,  devise  and  bequeath  to  H.  S.  G.,  one 
hundred  and  twenty  shares  of  stock  in  the  Cayuga  County  Bank,  at  Au- 
burn, to  be  transferred  to  her  as  soon  as  letters  testamentary  shall  be 
issued  and  granted  on  this  will."     There  were  other  legacies  in  the  will, 

1  Walton  v.  Walton,  7  J.  Ch.  R.  265.  4  Purse  v.  Snaplin,  1  Atk.  415  and 
Gardner  v.  Printup,  2  Barb.  S.  O.  R.  83.    notes. 

9  Id.  6  Kirby  v.  Potter,  4  Ves.  748.    Dean 

•  Webster  v.  Hale,  8  Ves.  410.    Wilson    v.  Test,  9  id.  146. 
r.  Browusinith,  9  id.  180.  6  Tifft  v.   Porter,  decided  in  1853,  4 

Seld. 


Ch.  7.1  Vested  and  Contingent  Legacies.  507 

but  none  which  tended  to  explain  either  of  the  above.  The  supreme  court 
in  the  seventh  district  held  the  above  legacies  to  be  specific,  and  that  the 
legatees  were  entitled  to  the  dividends  declared  and  accruing  thereon  from 
the  death  of  the  testator.  The  court  of  appeals  reversed  that  judgment, 
and  held  the  legacies  to  be  general  and  not  specific. 

There  are  some  English  cases,  in  modern  times,  that  have  gone  to  the 
extent  of  the  New- York  court  of  appeals,  in  Tifft  v.  Porter.1  But  it  13 
not  intended,  in  this  connection,  to  review,  or  to  attempt  to  reconcile  all 
the  cases  on  this  subject. 

A  legacy  bequeathed  to  be  paid  out  of  a  particular  debt  is  not  a  regu- 
lar specific  bequest,  but  in  the  nature  of  a  specific  legacy,  as  has  been 
already  noticed.  Such  legacies  do  not  fail  in  consequence  of  the  non-ex- 
istence of  the  fund  out  of  which  they  were  directed  to  be  paid,  but  are 
entitled  to  be  satisfied  out  of  the  general  assets  of  the  testator.  They 
have,  however,  one  of  the  incidents  of  specific  legacies,  in  this,  that  they 
have  precedency  of  payment  out  of  the  debt  or  security  to  which  they 
refer.2 

A  devise  of  land  is  specific  ;3  and  so  also  is  a  bequest  of  a  term  for 
years.4  Such  was  the  former  rule.  But  since  the  statute  has  placed 
real  and  personal  property  upon  the  same  footing,  to  a  great  extent,  by 
removing  the  technical  difficulty  of  devising  after  acquired  land,  it  is 
considered  that  real  estate  may  be,  as  well  as  personal,  the  subject  of 
general  bequest  or  devise. 


SECTION  VII. 

OF  VESTED  AND  CONTINGENT  LEGACIES,  AND  OF  LAPSE. 

We  will  now  proceed  to  make  some  observations  on  legacies,  vested 
and  contingent ;  and  under  this  head  we  will  notice  the  doctrine  of  lapse, 
with  reference  to  legacies.  A  legacy  is  not  said  to  be  vested  until  the 
the  interest  of  the  legatee  is  so  fixed  as  to  be  transmissible  to  his  per- 
sonal representatives,  in  case  he  should  die  before  the  legacy  becomes 
payable. 

The  general  principle  with  respect  to  the  doctrine  of  lapse  is  that  if 

1  Sibley  v.  Perry,  7  Ves.  522.     Wilson        '  Forrester  v.  Leigh,  Arabl.  173. 
v.  Brownsmith,  9  id.  180.  *  LoDg  v.  Short,  1  P.  Wins.  403. 

'  Roberts  v.  Pocock,  4  Ves.  150. 


508  Trusts.  fCh.  7, 

the  legatee  die  before  the  testator's  decease,  01   )efore  any  other  condi 
tion   precedent  to  the  vesting  of  the  legacy  is  performed,  the  legacy 
lapses,  and  is  not  payable  to  the  executors  or  administrators  of  the  lega- 
tee.1    This  is  the  necessary  result  of  the  rule,  that  a  will  does  not  take 
effect  until  the  death  of  the  testator.2 

With  respect  to  the  vesting  of  legacies,  a  distinction  is  made  between 
such  as  are  payable  out  of  real  or  personal  estate,  or  out  of  both  funds. 
As  has  already  been  shown,  legacies  are  primarily  payable  out  of  the 
personal  estate,  though  the  real  estate  be  charged.3  We  shall  first  con- 
sider those  which  are  payable  out  of  the  personalty,  and  then  point  out 
the  distinction  between  them,  and  such  as  are  payable  out  of  the  realty, 
or  chargeable  upon  both  funds. 

As  a  general  rule,  legacies  are  vested  by  the  assent  of  the  executor, 
immediately  on  the  testator's  death,  if  given  generally.4  And  it  has 
been  established  from  the  earliest  periods,  both  in  the  ecclesiastical 
courts  and  court  of  chancery  in  England,  that  unless  the  legatee  survive 
the  testator,  the  legacy  is  extinguished ;  neither  can  the  executors  or  ad- 
ministrators of  the  legatee  demand  the  same.5  But  the  New-York 
Revised  Statutes  have  altered  this  rule,  when  the  devise  or  legacy  is  in 
favor  of  a  child  or  other  descendant  of  the  testator.  It  is  thus  enacted  :5 
"  Whenever  any  estate,  real  or  personal,  shall  be  devised  or  bequeathed 
to  a  child  or  other  descendant  of  the  testator,  and  such  legatee  or  de- 
visee shall  die  during  the  lifetime  of  the  testator,  leaving  a  child  or 
other  descendant  who  shall  survive  the  testator,  such  devise  or  legacy 
shall  not  lapse,  but  the  property  so  devised  or  bequeathed  shall  vest  in 
the  surviving  child  or  other  descendant  of  the  legatee  or  devisee,  as  if 
such  legatee  or  devisee  had  survived  the  testator  and  had  died  intestate." 
If,  therefore,  the  devise  or  legacy  be  to  a  person  other  than  a  child,  or 
other  descendant  of  the  testator,  or  if  the  child  or  other  descendant  of 
the  legatee  or  devisee  do  not  survive  the  testator,  the  common  law  rule 
still  prevails,  and  the  legacy  lapses. 

A  legacy  may  lapse  by  the  death  of  the  legatee  before  the  testator, 
and  it  may  lapse  by  the  death  of  the  legatee  after  the  death  of  the  tes- 
tator. We  shall  notice  a  few  cases  under  each  of  these  heads.  Swin- 
burne puts  the  case  of  the  testator  and  legatee  being  drowned  in  the 

1  Androvi   v.  Poilblanc,  3   Atk.    299.  4  Chandos  v.  Talbot,  2  P.  Wms.  610. 

Birdsley  v.  Hewlett,  1  Paige,  32.  5  Went.  Ex.  436.    Swinb.  pt.  7,  §  23. 

a  Bac.  Abr.,  Leg.  E.  1  Rep.  156. 

1  McKay  v.  Green,  3  J.  Ch.  R.  56.  Lup-  6  2  R.  S.  66,  §  52. 
ton  v.  Lupton,  2  id.  614.     Hoes  v.  Van 
Hoesen,  1  Comst.  120. 


Ch.  7.1        Vested  and  Contingent  Legacies.     Lapse.  509 

same  ship,  or  both  being  struck  to  death  by  the  fall  of  a  house,  in  which 
case  he  lays  it  down,  that  as  they  both  died  at  the  same  time,  the  legacy 
is  not  due,  and  consequently  not  transmissible  to  the  executors  or  admin- 
istrators of  the  legatee.  In  a  modern  case,  in  the  prerogation  court,'  a 
husband  had  appointed  his  wife  executrix  and  residuary  legatee,  and  he 
and  his  wife  were  drowned  in  the  same  ship ;  the  contest  was  whether 
administration  of  the  estate  of  the  husband  cum  testamento  annexo 
should  be  granted  to  the  next  of  kin  of  the  testator,  or  the  next  of  kin 
of  the  wife  as  residuary  legatee.  By  the  practice  of  the  ecclesiastical 
courts,  if  the  wife  had  lived  to  be  entitled  as  a  residuary  legatee,  her 
next  of  kin  would  have  had  a  right  to  the  administration  in  preference 
to  the  next  of  kin  of  the  husband.  But  Sir  John  Nicholl  held,  that  the 
next  of  kin  of  the  husband  had  a  prima  facie  right,  and,  therefore,  that 
the  onus  of  proof  lay  on  the  party  who  claimed  derivatively  from  the 
residuary  legatee,  to  show  that  she  survived,  so  as  to  prevent  the  lapse 
of  the  legacy  ;  and  as  no  satisfactory  evidence  was  adduced  for  that  pur- 
pose, the  court  decreed  the  administration  to  the  next  of  kin  of  the 
husband,  as  being  clearly  entitled,  on  the  assumption  that  he  and  the 
wife  perished  at  the  same  moment. 

The  bequest  by  a  creditor  to  his  debtor,  of  the  amount  of  his 
debt,  may  be  a  mere  release  of  the  debt,  or  it  may  be  a  legacy,  and 
subject  to  the  ordinary  consequences  of  lapse  by  the  death  of  the  legatee 
before  the  testator,  depending  on  the  phraseology  of  the  will.  In  one 
case,  where  the  language  of  the  will,  after  giving  various  other  legacies, 
which  were  charged  upon  the  testator's  real  estate,  was  thus :  "  I  give 
and  bequeath  to  my  brother  J.  S.  the  amount  of  a  certain  bond  and  mort- 
gage which  was  executed  by  him  and  wife  to  me,  on,  &c.  for  $656  ;  also 
the  interest  on  the  same.  Also  the  amount  of  two  notes  I  hold  against 
mm,"  describing  them.  This  was  held  to  be  a  forgiveness  of  the  debt, 
and  that  it  was  not  the  intention  that  the  legatee  should  share  any  por- 
tion of  the  real  estate,  upon  which  the  other  legacies  were  charged.2 

If  such  bequest  be  a  legacy  and  not  merely  a  release  of  a  debt,  the 
death  of  the  legatee  before  the  testator  occasions  the  legacy  to  lapse,  and 
leaves  the  debt  still  operative  against  his  estate.  Thus,  where  the  words 
of  the  will  were,  "  I  devise  to  my  brother  £2000.  I  also  return  him  his 
bond  for  £400,  with  interest  due  thereon,  which  he  owes  me;"  and  the 
brother  having  died  in  the  lifetime  of  the  testator,  the  question  was 

•  Taylor  v.   Diplock,   2    Philm.    261.        a  Sholl  v.  Sholl,  5  Barb.  312. 
Wright  v.   Sarmuda,  or  Gen.  Stanwix's 
case,  in  notes  to  same. 


610  Trusts.  |'Ch.  7 

whether  the  disposition  of  the  bond  by  the  will  amounted  to  a  release,  or 
was  only  a  legacy,  and  therefore  lapsed.  Lord  Loughborough  held  that  it 
Was  a  legacy,  and  that  it  had  lapsed.1 

Nor  does  it  alter  the  rule  if  the  legacy  expressly  contains  words  of  lim- 
itation. Thus,  where  a  legacy  is  given  to  a  man,  his  executors,  adminis- 
trators and  assigns,  if,  in  such  case,  the  legatee  dies  in  the  life  of  the 
testator,  though  the  executors  are  named,  yet  the  legacy  is  lost ;  for  the 
words  executors,  administrators  and  assigns  are  mere  surplusage,  inas- 
much as  they  would  by  law  have  taken  the  legacy  in  succession,  whether 
named  or  not.2  It  was  admitted,  in  that  case,  that  a  will  might  be  so 
penned  as  that  the  executors  and  the  legatee  should  have  the  legacy, 
though  the  legatee  died  in  the  lifetime  of  the  testator.;  yet  it  ought  to  ap- 
pear in  the  will  plainly,  and  by  direct  words,  that  that  was  the  testator's 
intention.  And  though  a  will  could  not  inure  as  a  release,  even  supposing 
it  to  be  sealed  and  delivered,  for  want  of  its  taking  effect  in  the  testator's 
lifetime,  yet,  provided  it  were  expressed  to  be  the  intention  of  the  party 
that  the  debt  should  be  discharged,  the  will  would  operate  accordingly. 

It  is  the  established  rule  of  courts  of  equity  that  a  testator  is  never  to 
be  supposed  to  mean  to  give  any  thing  but  to  those  who  shall  survive  him, 
unless  the  intention  is  perfectly  clear.  Where  the  fund  is  given  to  one 
for  life,  and  after  the  death  of  that  person  to  several  others,  and  in  case 
of  their  death  to  their  representatives,  there  is  no  reason  to  presume  an 
intention,  that  it  shall  not  lapse  by  the  death  of  the  legatee  in  the  life  of 
the  testator.  It  is  impossible,  without  transgressing  every  rule  as  to  vest 
ing,  to  hold  a  legacy  vested,  when  the  legatee  does  not  live  to  take  the  ben 
efit  under  the  testator's  will.3  So,  if  a  legacy  be  given  to  a  man,  and 
directed  to  be  paid  to  him  or  his  executors,  or  administrators,  or  personal 
representatives,  or  to  his  heirs,  at  the  end  of  a  year  after  the  testator's 
death,  and  the  legatee  die  before  the  testator,  the  legacy  intended  for  him 
will  lapse.4 

In  Pennsylvania,  where  there  is  a  law  similar  to  that  of  this  state 
relative  to  the  lapse  of  legacies  and  devises,  it  has  been  held  that  a  bequest 
to  a  niece  and  her  heirs,  became  lapsed  by  the  death  of  the  legatee  before 
the  testator.  The  court  held  that  the  word  "heirs"  could  not  operate  in 
favor  of  the  "  issue"  for  which  alone  the  statute  provided.  The  Pennsyl- 
vania act  prevented  a  lapse  of  a  legacy  bequeathed  to  a  child  or  other  lin- 
eal descendant  if  the  legatee  die  before  the  testator,  leaving  a  child  01 

1  Maitlancl  v.  Adair,  8  Ves.  231.  s  Corbyn  v.  French,  4  Yes.  435. 

9  Elliot  v.  Davenport,  1  P.  Wms.  83.  *  Tidwell  v.  Ariel,  3  Mad.  Oh.  R.  403. 


Oh.  7.]  Lapse.  511 

other  lineal  descendant,  who  survived  the  testator.1  This  is  substan- 
tially like  the  New-York  statute. 

The  general  rule  with  respect  to  the  lapse  of  a  legacy  or  devise  can  be 
controlled  in  cases  not  within  the  statute,  by  the  declared  intention  of  the 
testator  that  the  legacy  shall  not  lapse,  and  by  the  substitution  of  the  ex- 
ecutors or  administrators  of  the  legatee.  Thus,  in  a  case  before  Lord 
Hardwicke,2  the  testatrix  bequeathed  as  follows :  "I  give  and  devise  the 
several  legacies  and  sums  following,  which  I  will  shall  be  paid  to  the  sev- 
eral persons  hereinafter  named,  and  that  if  any  of  those  persons  should  die 
before  the  same  become  due  and  payable,  I  will  that  they,  or  any  of  them, 
shall  not  be  deemed  lapsed  legacies."  She  then  particularized  the  several 
legatees,  and  said,  "  to  Ann  the  wife  of  Richard  Wensley  and  to  his  ex- 
ecutors, or  administrators,  I  give  the  sum  of  fifty  pounds."  Ann  died  in 
the  lifetime  of  the  testatrix,  and  her  husband  administered  to  her.  The 
question  was  whether  the  legacy  lapsed  by  reason  of  the  death  of  the 
legatee  first  named.  Lord  Hardwicke  determined  in  the  negative,  and 
said  that  the  testatrix  expressly  provided  against  the  lapsing,  "if  Ann  died 
before  her,  for  she  says,  '  if  any  of  these  persons  die  before  the  same  become 
due  or  payable,  I  will  that  they  or  any  of  them  shall  not  be  deemed  lapsed 
legacies,'  and  subsequently  to  this  devises  '  to  Ann  and  to  her  executors 
and  administrators  fifty  pounds,'  so  that  in  case  of  her  death  before  the 
testatrix,  other  persons  are  named  to  take.'"  His  lordship  seems  to  have 
thought  that  unless  the  executors  or  administrators  had  been  named  in 
substitution  for  the  legatee  first  named,  the  general  rule  would  have  pre- 
vailed, and  the  legacy  become  lapsed  on  the  death  of  the  legatee  before 
the  testator.  For  he  says,  if  a  man  devises  a  real  estate  to  J.  S.  and  his 
heirs,  and  signifies  or  indicates  his  intention,  that  if  J.  S.  die  before  him, 
it  should  not  be  a  lapsed  legacy,  yet  unless  he  had  nominated  another  leg- 
atee, the  heir  at  law  is  not  excluded,  notwithstanding  the  testator's  dec- 
laration. So  in  the  devise  of  a  personal  legacy  to  A.,  though  the  testator 
should  show  an  intention  that  the  legacy  should  not  lapse  in  case  A.  die 
before  him,  yet  this  is  not  sufficient  to  exclude  the  next  of  ian.  The 
same  doctrine  has  been  followed  in  subsequent  cases.3 

Under  the  New- York  statute  it  is  not  necessary,  to  prevent  a  lapse, 
that  the  testator  should  indicate  his  intention  to  that  effect.  The  statute 
prevents  the  lapse  of  the  legacy,  if  it  be  to  a  child  or  other  descendant  of 
the  testator,  and  the  legatee  dies  before  the  testator,  leaving  a  child  or 

8  Serg.  &  B.  Tl.  v.  Abbott,  3  Bro.  C.  C.  224.    Elliott  v. 

Sibley  v.  Cook,  3  Atk.  572.  Davenport,  1  P.  Was.  86. 

Toplia  v.  Barker.  2  Cox,  121.    Bridge 


512  Trusts.  [Ch.  7. 

other  descendant,  who  survives  the  testator.  In  other  cases  the  rule  of 
the  common  law  prevails. 

It  is  laid  down  by  elementary  writers  on  this  subject,1  that  if  a  legacy 
be  so  given  as  to  be  payable  at  the  testator's  death,  the  period  of  receipt 
not  being  expressly  postponed  by  him,  and  if  the  form  of  bequest  be  to 
the  legatee  or  his  personal  representatives,  the  legacy  will  not  lapse  by 
his  death  before  the  testator ;  and  for  these  reasons  :  There  is  no  period 
at  which  the  representatives  can  take,  as  intended  by  the  will,  except  in 
consequence  of  the  legatee  dying  in  the  lifetime  of  the  testator  ;  the  tes- 
tator's intention,  therefore,  in  naming  the  representatives,  must  have  been 
to  guard  against  a  lapse  by  the  death  of  the  legatee  before  him.  The  in- 
tent is  as  manifest  as  if  actually  expressed  ;  and  since  persons  are  desig- 
nated to  take  the  legacy  upon  the  happening  of  that  contingency,  there  is 
an  union  of  the  two  circumstances,  which  are  required,  and  are  sufficient 
to  prevent  the  lapsing  of  the  legacy.  These  two  circumstances  are  the 
expressed  intention  of  the  testator,  and  the  substitution  of  the  executors 
or  administrators. 

In  case  a  legacy  be  given  to  two  or  more  persons  jointly,  and  one  of 
them  dies  before  the  testator,  there  is  no  lapse,  but  the  survivor  tak<>s 
the  whole.2  In  the  case  of  a  joint  devise  or  legacy,  if  for  any  reason  one 
of  the  joint  tenants  cannot  take,  the  other  shall  have  the  whole.3 

A  different  rule  prevails  where  the  legacy  is  to  several  as  tenants  in 
common,  as  where  an  aggregate  fund  is  to  be  divided  amongst  them, 
nominatim,  in  equal  shares,  if  any  of  them  die  before  the  testator,  what 
was  intended  for  them  will  lapse  into  the  residue.4 

Where  a  legacy  is  given  to  a  class,  as  to  the  children  of  A.,  and  no  period 
s  fixed  for  its  distribution,  it  is  considered  as  due  at  the  death  of  the 
testator,  and  none  but  children  who  were  born  or  begotten  before  that 
time  are  entitled  to  share  in  it.  But  if  the  legacy  be  payable  at  a  cer- 
tain period  after  the  death  of  the  testator,  all  the  children  who  are  in  esse 
at  that  time  will  be  entitled  to  share.5  A  bequest  to  a  class,  in  equal 
shares,  the  fund  to  be  invested  and  paid  to  them  severally,  as  they  become 
of  age,  vests  only  in  those  who  are  living  at  the  testator's  death.6  Of 
course  the  death  of  one  of  the  class  before  the  death  of  the  testator  will 
occasion  no  lapse,  but  those  of  the  described  class  who  survive  will  take 
the  whole. 

1  1  Pop.  Leg.  410.     2  Will.  Ex.  761.  Page,  2  P.  Wms.  489.    Bagswell  v.  Dry,  1 

2  Buffar  v.  Bradford,  2  Atk.  220.  Mos-  id.  700.  Marsh  v.  Wheeler,  2  Edw.  156 
ley  v.  Bird,  3  Ves.  628.  6  Jenkins  v.  Fryer,  4  Paige,  47. 

3  Dowset  v.  Sweet,  Amhl.  175.  6  Collin  v.  Collin,  1  Barb.  Ch.  Pv.  630. 

4  Man  v.  Man,  2  Str.  905.     Page  v. 


Ch.  7.]  Vested  Legacies.  513 

If  a  legacy  be  given  to  one  for  life,  with  remainder  over,  and  the  tenant 
for  life  dies  before  the  testator,  the  remainder  over  takes  effect  upon  the 
death  of  the  testator.1 

Having  noticed  some  of  the  cases  with  reference  to  the  lapse  of  lega- 
cies, by  the  death  of  the  legatee  before  the  testator,  we  will  proceed  now 
to  consider  others  where  legacies  lapse  by  the  death  of  the  legatee  after 
the  death  of  the  testator. 

In  general,  it  may  be  observed,  that  the  court  favors  the  vesting  of 
interests,-  especially  of  a  residuary  bequest,  in  order  to  prevent  an  intes- 
tacy.3 It  has  already  been  remarked  that  legacies,  if  given  generally, 
are  vested  by  the  assent  of  the  executor,  immediately  on  the  death  of  the 
testator.4  The  statute  directing  that  no  legacies  shall  be  paid  by  any  ex- 
ecutor or  administrator,  until  after  the  expiration  of  one  year  from  the 
time  of  granting  letters  testamentary,  or  of  administration,  unless  the 
same  are  directed  by  the  will  to  be  sooner  paid,5  is  merely  in  affirmance 
of  the  common  law,  and  is  for  the  convenience  of  the  executor,  and  does 
not  prevent  the  interest  vesting,  immediately  on  the  testator's  death.* 
Hence,  if  the  legatee  happens  to  die  within  the  year,  his  personal  repre- 
sentative will  be  entitled  to  the  legacy.  Nevertheless,  the  intention  of 
the  testator,  that  the  gift  shall  not  vest  in  the  legatee,  until  it  should  be 
actually  remitted  to  him,  will  prevail,  when  clearly  expressed,  provided 
tile  remittance  be  not  delayed  by  negligence  or  inevitable  accident.7 

But  when  a  future  time  for  the  payment  of  the  legacy  is  defined  by  the 
will  itself,  the  legacy  will  be  vested  or  contingent,  according,  as  upon 
construing  the  will,  it  appears  whether  the  testator  meant  to  annex  the 
time  to  the  payment  of  the  legacy,  or  to  the  gift  of  it.8 

In  seeking  for  the  intention  of  the  testator  in  this  respect,  courts  of 
equity  have  borrowed  from  the  civil  law  two  rules  of  construction  :  1.  That 
a  legacy  to  a  person  generally,  to  be  paid  or  payable  at  the  age  of  twenty 
one,  or  at  any  other  definite  period,  confers  such  a  vested  interest  in  the 
legatee,  on  the  death  of  the  testator,  that  if  the  legatee,  surviving 
the  testator,  dies  before  the  age  of  twenty-one,  or  the  happening  of 
the  specified  event,  the  legacy  goes  to  his  executors  or  administrators  ; 
upon  the  principle  that  it  is  debitum  in  presenti,  though  solvc?idum 
in  futuro.     The  time  in   this  case  is  annexed  to  the   payment   and 

Hardwick  v.  Thurston,  4  Russ.  380-  6  2  R.  S.  90,  §  43. 

383.     Bac.  Abr.,  Leg.  E.  p.  2-iO.  •  Garthshore  v.  Chalie,  10  Ves.  13. 

1  Pre.-cott  v.  Long,  2  Ves.  690  '  Law  v.  Thompson,  4  Russ.  92. 

'  Bolger  v.  Machell,  5  Ves.  509.   Booth  *  Andrews  v.  N.  Y.  Bible  and  Prayer 

v.  Bootli,  4  id.  407.  Book  Society,  4  Sand  S.  C.  R.  173,  174, 

4  ChaDdoa  v.  Talbot,  2  P.  "Wms.  610.  per  Duer,  J. 

Eq.  Jub.  65 


514  Trusts.  [Ch.  7. 

not  to  the  legacy.  The  effect,  with  respect  to  the  vesting  of  the  leg- 
acy, is  the  same  as  if  it  stood  singly,  and  no  time  of  payment  was  men- 
tioned. The  direction  of  the  will  as  to  time  of  payment,  whether  longer 
or  shorter,  is  merely  a  modification  of  the  rule,  which  the  law  would  annex 
to  it,  if  no  time  of  payment  had  been  prescribed  by  the  testator.  2.  If 
the  words  "  payable"  or  "  to  be  paid"  are  omitted,  and  the  legacy  is  given 
to  the  legatee  at  twenty-one,  or,  if  or  when  or  provided  he  shall  attain 
twenty-one  or  any  other  definite  period,  those  expressions  annex  the  timo 
to  the  substance  of  the  legacy,  and  make  the  legatee's  title  to  it  depend 
on  his  being  alive  at  the  time  fixed  for  its  payment.  It  follows  that  if 
the  legatee  dies  before  that  time  happens,  although  he  survives  the  tes- 
tator, the  legacy  is  lapsed.  The  legatee,  in  that  case,  plainly  has  no 
interest  which  can  be  transmitted  to  his  personal  representatives.' 

A  few  illustrations  of  the  first  rule  will  be  given,  showing  that  the 
legacy  is  vested,  when  the  bequest  is  in  terms  immediate,  and  the  pay- 
ment alone  is  postponed.  Thus,  where  the  testator  bequeathed  to  his  son 
£400,  to  be  paid  to  him  at  the  end  of  one  year  after  his  (the  testator's) 
death,  and  the  further  sum  of  £100  at  the  death  of  his  mother :  the  son 
died  before  his  mother  ;  the  question  was,  whether  he  took  a  vested 
interest  in  the  £100.  And  Lord  Hardwicke  held  that  he  did,  observing 
that  the  legacy  of  that  sum  was  plainly  vested,  and  the  time  of  payment 
only  postponed ;  for  the  former  words,  "  to  be  j>aid,"  were  to  be  carried 
on,  as  they  would  clearly  be,  if  turned  into  any  other  language.'2 

In  another  case,  a  legacy  was  given  to  an  apprentice,  to  be  paid  to  him 
within  six  months  after  he  should  have  fully  served  out  his  apprenticeship. 
The  legatee,  instead  of  serving  out  his  time,  ran  away  from  his  master, 
and  died  intestate,  after  the  period  of  his  apprenticeship  expired.  The 
court  decreed  the  legacy  to  his  administrator,  with  interest  from  the  end 
of  six  months,  after  the  expiration  of  the  apprenticeship  ;  and  the  house 
of  lords  confirmed  the  decree.3 

The  foregoing,  and  other  cases  to  the  like  effect,  are  approved  by  the 
supreme  court  of  this  state  in  a  case  presenting  the  same  principle,  and 
affording  an  apt  illustration  of  the  rule.4  In  that  case,  the  testator,  after 
bequeathing  £3000  to  trustees  in  trust  to  pay  the  interest  to  M.  H.  dur 

1  Cricket  v.  Dolby,  3  Yes.  15.     2Vern.  509.    Perry  v.  Rhodes,  2  Murphy,  140. 

199.     Hanson  v.  Graham,  6  Ves.  jr.  239.  Marsh  v.  Wheeler,  2  Edw.  156. 

Attorney  General  v.  Milner,  3  Atk.  114.  a  Jackson  v.  Jackson,  1  Ves.  sen.  217. 

Lowther  v.  Condon,  2  Atk.  128.     Sweet  3  Sidney  v.  Vaughn,  2  Bro.  P.  C.  254 

v.  Chase,  2  Comst.  73.    Tucker  v.  Ball,  4  Burrill  v.  Sheil,  2  Barb.  S.  C.  R.  458 

1  Barb.  S.  C.  R.  94.     Burrill  v.  Scheli,  2  470. 
id  458,  470.    Bolger  v.  Mackell,  5  Ve.s. 


Oh.  7.]  Vested  and  Contingent  Legacies.  515 

incr  her  natural  life,  and  on  her  death  to  the  sister  of  the  testator,  S.  F., 
during  her  natural  life,  and  on  her  death  he  bequeathed  the  said  three 
thou  sand  pounds  "to  the  surviving  issue  of  his  said  sister,  share  and 
share  alike,  to  be  at  their  own  disposal  as  soon  as  they  shall  have  re- 
spectively and  severally  attained  the  age  of  twenty-five  years,  the  inter- 
est to  be  paid  to  them  until  they  shall  have  severally  attained  the  age  of 
twenty-five  years  aforesaid."  The  court  held,  on  this  point,  that  the 
principal  sum  was  well  given  to  the  surviving  issue  of  S.  F.,  the  testator's 
sister,  immediately  on  her  death,  to  be  at  their  own  disposal  as  they  should 
respectively  attain  the  age  of  twenty-five  years  ;  and.  until  that  age,  the 
executors  and  trustees  were  authorized  to  pay  over  the  interest  to  the  said 
issue.  The  words,  "  to  be  at  their  disposal,"  taken  in  connection  with 
the  disposition  of  the  interest,  conferred,  in  the  opinion  of  the  court,  on 
the  surviving  issue,  a  vested  interest  on  the  death  of  S.  F.,  the  testator's 
sister;  or,  in  case  of  her  death  before  M.  H.,  the  first  legatee  or  life,  on 
the  death  of  the  latter.  The  legacy  thus  vested  in  interest  on  the  death 
of  the  testator,  though  not  in  full  enjoyment  until  the  death  of  the  lega- 
tees for  life,  and  the  attaining  of  the  age  of  twenty-five  years  by  the  leg- 
atees respectively.  The  court,  in  this  case,  considered  that  the  disposi- 
tion of  the  interest  was  a  plain  indication  of  the  testator's  intention  that 
the  legatee  should  at  all  events  have  the  principal.1 

But  this  rule  we  are  considering  must  nevertheless  yield  to  the  clear 
intention  of  the  testator  to  the  contrary,  if  from  the  whole  scope  of  the 
will  it  appears,  beyond  reasonable  doubt,  that  the  testator  did  not  intend 
the  legacy  to  vest  until  the  period  of  payment.  It  is  a  rule  adopted  from 
tic  practice  of  the  ecclesiastical  courts,  and  is  applicable  only  to  personal 
legacies,  but  not  as  to  real  estate  ;  it  is  not  much  favored,  and  is  not  to 
be  extended. 

The  other  positive  rule,  namely,  when  the  words  "  payable,"  or  "  to  be 
paid,"  are  omitted,  and  the  legacy  is  given  "  at "  twenty-one,  or  if,  token, 
or  provided  the  legatee  attains  twenty-one,  or  any  other  definite  period. 
In  this  case  the  legacy  is  contingent,  and  does  not  vest,  and  is  not  trans- 
missible to  the  executors  or  administrators  of  the  legatee,  unless  he  sur- 
vives the  period  fixed  by  the  will.  A  few  cases  on  this  subject  will  be 
given  as  illustrative  of  the  rule. 

Thus,  in  an  early  case,  the  testator  gave  to  his  son  £200  at  his  tig* 
of  twenty-one  years.     The  son  died  under  twenty-one  ;  and  it  was  deter- 

1  Fornereau  v.  Fornereau,  3  Atk.  645.        ■  Mackell  v.  Winter,  3  Yes.  543. 
Soath  v.  Hoath,  2  Bro.  C.  C.  3.     Hanson 
'.  Graham,  6  Ves.  239. 


516  Trusts.  [Ch.  7 

mined  that  the  legacy  never  vested  in  him,  as  the  age  was  annexed  to  the 
gift,  and  not  to  the  time  of  the  payment ;  consequently  it  was  not  an 
interest  transmissible  to  the  executor  or  administrator  of  the  legatee.1 

In  another  case,'  the  bequest  was  in  these  words :  "  I  give  £100  a 
piece  to  the  two  children  of  J.  S.,  at  the  end  of  ten  years  after  my  de- 
cease" The  children  died  within  the  ten  years  ;  and  Lord  Chancellor 
Cooper  held  that  the  legacy  lapsed,  and  did  not  go  to  the  executors  of  the 
children.  He  took  a  distinction  between  a  case  where  the  bequest  is 
to  take  effect  at  a  future  time,  and  where  the  'payment  is  to  be  made  at 
a  future  time.  And  he  said,  that  wherever  time  is  annexed  to  the  legacy 
itself,  and  not  to  the  payment  of  it,  as  in  that  case,  if  the  legatee  dies  be- 
fore the  time  of  payment,  it  is  a  lapsed  legacy. 

In  a  leading  case  on  this  subject,  and  which  has  been  repeatedly  acted 
upon,  it  was  clearly  held,  that  the  expressions,  "  at  twenty-one,"  or  "  if," 
or  "  when"  he  shall  attain  twenty-one,  or  "  if  he  shall  survive  B.,"  are  con- 
tingent, and  that  in  each  of  those  cases  if  the  legatee  dies  before  the  time, 
the  legacy  lapses.3  In  all  these  cases  the  time  of  payment  is  annexed  to 
and  forms  part  of  the  gift ;  the  attaining  the  age  of  twenty -one  years,  or 
surviving  B,.is  a  condition  precedent,  the  performance  of  which  is  neces- 
sary to  vest  the  legacy.4 

The  foregoing  rule,  though  well  settled,  is  open  to  a  similar  exception 
to  that  mentioned  under  the  other  rule,  viz,  that  if  the  clear  intention  of 
the  testator,  deducible  from  the  whole  will,  shows  that  the  legacy  shall 
vest,  notwithstanding  the  form  of  words,  if  standing  alone,  would  indicate 
the  contrary,  the  intention  shall  prevail,  when  it  is  consistent  with  the 
rules  of  law. 

The  foregoing  cases  are  all  recognized  by  the  court  of  dernier  resort  in 
New-York,  in  an  important  case,  which  also  establishes  the  exceptions  to 
the  rule.5  The  doctrine  was  thus  stated  in  that  case  :  where  the  gift  of 
a  legacy  is  absolute,  and  the  time  of  payment  only  postponed,  as  where 
the  sum  of  $1000  is  given  to  A.,  to  be  paid  when  he  shall  attain  the  age 
of  twenty-one  years,  the  time  not  being  of  the  substance  of  the  gift, 
postpones  the  payment,  but  not  the  vesting  of  the  legacy  ;  and  if  the  leg- 
atee die  before  the  period  specified,  his  representatives  are  entitled  to  the 
money.  But  where  the  legacy  is  given  when  the  legatee  shall  attain,  or 
provided  he  does  attain  the  age  of  twenty-one  years,  time  is  of  the  sub- 

1  Cruse  v.  Barley,  3  P.  Wms.  20.  *  Id.    Goss  v.  Nelson,  1  Burr.  227,  per 

1  Snell  v.  Dee,  2  Salk.  415.  Ld.  Mansfield.    Hodges  v.  Peacock,  3  Ves. 

'  Stapleton  v.  Cheele,  Prec.  Chan.  317.  735. 

Han-on  v.  Graham,  6  Ve3.  jr.  245.  Forne-  6  Patterson  v.  Ellis,  11  Wend.  259,  2f.fi 

reun  v.  Fornereau,  3  Atk.  645.  et  seq.,  per  Savage,  Ch.  J. 


Cb.  7.]        Vested  and  Contingent  Legacies.     Lapse.  o17 

stance  of  the  gift,  and  the  legacy  does  not  vest  until  the  contingency 
happens. 

But  even  where  the  legacy  is  given  when  the  legatee  attains  the  age 
of  twenty-one  years,  if  the  devisor  directs  the  interest  of  the  legacy  to  be 
applied  in  the  mean  time  for  the  benefit  of  the  legatee,  there  being  an 
absolute  gift  of  the  interest,  the  principal  will  be  deemed  to  have  vested.1 
So  the  legacy  will  be  deemed  vested,  if  it  be  left  to  the  discretion  of  a 
trustee  to  pay  the  legacy  sooner  than  the  time  specified  in  the  will  ;  and 
it  seems  that  the  mere  appointment  of  a  trustee  for  the  legatee  during 
the  minority,  will  have  the  same  effect. 

But  other  circumstances,  besides  giving  the  intermediate  interest  to  the 
legatee,  will  indicate  the  intention  of  the  testator  that  the  legacy  shall 
vest,  though  the  form  of  the  bequest,  if  standing  alone,  would  not  be  suf- 
ficient for  that  purpose. 

Thus,  where  a  legacy  of  £50  was  given  to  A.  at  twenty-one,  or  mar- 
riage, and  £50  to  B.  at  twenty-one,  or  marriage,  and  in  the  close  of  the 
will  the  testator  added,  "  If  any  legatee  dies  before  his  legacy  is  payable, 
the  same  shall  go  to  the  brothers  and  sisters  of  such  legatee  :"  A.  dying 
in  the  lifetime  of  the  legatee,  it  was  adjudged  no  lapsed  legacy,  but  that 
it  should  go  to  the  sister.2 

If  there  be  a  bequest  to  a  person  payable  at  a  certain  period,  which 
may  happen  either  before  or  after  the  death  of  the  testator,  with  a  decla- 
ration, if  the  legatee  die  before  the  legacy  is  payable,  that  it  shall  go  to 
the  "  survivors,"  if  there  be  a  class,  or  to  some  person  or  person  described  ; 
then  if  the  legatee  should  die  before  the  assigned  period,  although  in  the 
lifetime  of  the  testator,  the  legacy  docs  not  lapse,  but  goes  according  to 
the  will.  If,  however,  the  period  should  arrive  in  the  lifetime  of  the  tes- 
tator, and  the  legatee  should  survive  it,  and  then  die  before  the  testator, 
the  legacy  does  lapse.3 

We  will  now  proceed  to  notice  the  lapse  of  legacies,  payable  out  of 
real  estate  only. 

With  regard  to  this  class  of  legacies,  the  first  rule  above  stated,  adopt- 
ed with  respect  to  legacies  payable  out  of  personal  estate,  viz.  that  where 
the  time  is  annexed  to  the  payment  and  not  to  the  gift,  the  legacy  vests 

'  Patterson  v.  Ellis,  11  Wend.  259,  268        s  Danell  v.  Molesworth,  2  Vera.  378. 
et  seq.,  per  Savage,   Ch.  J.    Bnrrell  v.    Bae.  Abr.,  Leg.  E. 
Sliiel,  2  Barb.  S.  C.  Pv.  470.  as  to  effect  of        3  Id.     Willing  v.  Baine,  3  P.  Wma.  113. 
giving  interest  Iluniberstone  v.  Stanton,   1   Yes.  &  B. 

885,  3S8. 


518  Trusts.  [Ch.  7. 

immediately,  though  not  payable  until  the  time  specified  arises,  does 
not,  generally  speaking,  prevail. 

The  reason  for  the  distinction  is,  that  formerly  legatory  matters  were 
solely  cognizable  in  the  ecclesiastical  courts,  "whose  decisions  were  regu- 
lated by  the  civil  law ;  and  by  that  law,  a  bequest  to  a  person,  to  be  paid 
at  a  future  time,  was  held  to  confer  a  present  right  to  the  legacy,  not- 
withstanding the  time  of  payment  was  future.  Courts  of  equity  having 
by  degrees  acquired  jurisdiction  of  this  class  of  cases,  upon  the  notion  of 
trusts,  with  a  view  to  a  uniformity  of  decisions,  adopted  the  rule  in  ques- 
tion, in  respect  to  legacies  of  personal  property.  But  legacies  charged 
upon  real  estate,  or  payable  in  land,  never  fell  within  the  cognizance  of 
the  ecclesiastical  courts.  There  was  not,  therefore,  the  same  reason  for 
adopting  that  rule  as  applicable  to  legacies  of  this  description.  And  as 
the  rule  itself  was  contrary  to  the  favor  which  the  English  law  shows  to 
the  owner  of  the  inheritance,  courts  of  equity  rejected  it,  in  respect  to 
all  such  legacies.1 

The  leading  case,  in  the  English  books  on  this  subject,  was  decided  in 
1683.2     In  that  case  the  father  limited  a  term  to  trustees  for  the  raising 

CI 

of  £4000  apiece  for  his  younger  children  for  their  portions,  to  be  paid 
them  at  their  respective  marriages,  or  ages  of  one  and  twenty  years, 
which  should  first  happen  ;  and  for  paying  up  to  them  £100  per  annum, 
maintenance  in  the  mean  time  ;  and  after  these  portions  and  maintenance 
raised,  then  the  residue  of  the  term  was  to  be  in  trust  for  his  heir,  the 
defendant.  The  father,  having  two  daughters  by  the  plaintiff,  his  second 
wife,  made  his  will,  giving  to  each  of  them  £4000  apiece  for  their  respec- 
tive portions,  to  be  raised  and  paid  them  in  such  manner  as  by  the  said 
settlement  is  directed ;  but  declaring  that  they  should  have  but  the 
£4000  apiece,  and  not  two,  by  the  settlement  and  will,  unless  his  son,  the 
defendant,  should  die  without  issue,  in  which  case  he  devised  that  they 
should  have  £2000  apiece  more,  to  be  paid  in  the  same  manner  as  the 
£4000.  One  of  the  daughters  died,  being  about  eight  years  of  age. 
The  mother  took  letters  of  administration  to  her  daughter,  and  exhibited 
her  bill  against  the  trustees  and  the  heir  at  law,  to  have  her  daughter's 
portion  of  £4000  raised  and  paid.  The  question  was,  whether  the  £4000 
portion  to  the  daughter  ceased  by  her  death,  or  should  be  raised  for  the 
benefit  of  her  administratrix.  It  was  admitted  by  Lord  Keeper  Guilford, 
that  if  the  £4000  had  been  to  have  been  raised  out  of  the  personal  estate, 


1  Birdsall  v.  Hewlett,  1  Paige,  32.    Har-        »  Powlet  v.  Powlet,  1  Tern.  204.    3 
ris  v.  Fly,  7  id.  421,  428.    2  Witt.  Ex.    Ventris,  366. 
780. 


Ck.  7. J       Vested  and  Contingent  Legacies.     Lapse.  51$ 

it  had  betn  clear,  the  plaintiff  must  have  had  it ;  but  being  a  charge  upon 
the  estate  of  the  heirs,  he  would  consider  of  it ;  and  afterwards  he  said, 
that  as  the  portion  was  to  come  wholly  out  of  the  lands,  and  the  person- 
al estate  no  way  subjected  or  made  liable  to  the  payment  of  it  by  the 
will,  the  claim  of  the  plaintiff  could  not  be  supported.  In  other  words, 
the  legacy  became  lapsed  by  the  death  of  the  legatee,  after  the  death  of 
the  testator,  but  before  the  time  limited  for  the  payment  of  the  legacy. 

The  doctrine  of  this  case  has  been  followed  in  numerous  English  cases,1 
and  has  been  repeatedly  recognized  in  this  state.2  In  one  of  the  cases 
in  this  state,  (Marsh  v.  Wheeler,  supra,)  the  vice  chancellor  states  the 
rule,  with  respect  to  the  vesting  of  legacies  payable  out  of  real  estate, 
thus  :  where  the  gift  is  immediate,  but  the  payment  is  postponed  until  the 
legatee,  for  instance,  attains  the  age  of  twnety-one  years,  or  marries,  then 
it  is  contingent,  and  will  fail  if  the  legatee  dies  before  the  time  of  pay- 
ment arrives ;  but  when  the  payment  is  postponed  in  regard  to  the  con- 
venience of  the  person,  and  the  circumstances  of  the  estate  charged  with 
the  legacy,  and  not  on  the  account  of  the  age,  condition  or  circumstances 
of  the  legatee,  in  such  a  case  it  will  be  vested  and  must  be  paid,  although 
the  legatee  should  die  before  the  time  of  payment. 

The  rule,  as  thus  deduced  by  the  vice  chancellor,  in  Marsh  v.  Wheeler, 
contains  also  the  exception,  and  both  the  rule  and  exception  are  adopted 
by  Chancellor  Walworth  in  Harris  v.  Fly,  as  they  have  been  in  recent 
English  cases.3  This  exception  is,  that  the  legacy  only  lapses  in  such 
case,  where  the  payment  is  postponed  by  the  testator  in  reference  to  the 
situation  or  circumstances  of  the  legatee  personally,  and  not  where  it  is 
postponed  for  the  convenience  of  the  estate  or  fund  out  of.  or  in  reference 
to  which  it  was  given.4 

Chancellor  Walworth,  in  Birdsall  v.  Hewlett,  speaking  of  the  rule  and 
exception,  says :  It  is  undoubtedly  a  general  rule,  that  legacies  charged 
upon  the  real  estate,  and  payable  at  a  future  day,  are  not  vested,  and  be- 
come lapsed  if  the  legatee  dies  before  the  time  of  payment  arrives.  This 
rule  Avas  at  first  adopted  without  any  exceptions,  and  in  direct  opposition 
to  that  which  existed  in  relation  to  legacies  payable  out  of  the  personal 
estate.     This  was  done  for  the  benefit  of  the  heir  at  law,  who  was  a  par- 

1  Smith  v.  Smith,  2  Vern.  92.    Rey-  v.  Hewlett,  1  id.  32.    Marsh  v.  Wheeler, 

nidi  v.  Martin,  3  Atk.  335.     Yates  v.  2  Edw.  163. 

Phettipkoe,  2  Vern.  416.  Duke  of  Chan-        3  Goulborn  v.  Brooks,  2  Y.  &  Col.  539. 

dos  v.  Talbot,  2  P.  Wins.  610,  and  cases  Murkin  v.  Philipson,  3  Myl.  &  K.  261. 
in  note.     Prowse  v.  Abingdon,  1  Atk.        *  See  cases  above,  and  Birdsall  v.  Hew* 

485.     Jennings  v.  Looks,  2  P.  Wins.  276  lett,  1  Paige,  32.   Harris  v.  Fly,  7  id.  428 

3  Harris  v.  Fly,  7  Paige,  428.     Birdsah  Marsh  v.  Wheeler,  2  Edw.  163. 


520  Trusts.  [Ch.  7 

ticular  favorite  of  the  English  courts  ;  and  he  says,  I  am  not  aware  that 
it  has  ever  been  extended  to  a  case  where  the  estate  was  given  to  a  stran- 
ger, upon  the  express  condition  that  he  paid  the  legacy  charged  thereon ; 
and  the  rule  has  long  since  been  much  narrowed  down,  even  as  between 
the  legatees  and  the  heir  at  law. 

Like  the  other  cases  we  have  considered,  a  legacy  charged  on  real 
estate,  or  payable  out  of  it,  with  respect  to  the  doctrine  of  lapse,  may  be 
controlled  by  the  clearly-expressed  intention  of  the  testator  in  his  will. 
Thus ;  in  a  recent  case,  the  testator  gave  legacies  charged  on  his  real 
estate  to  his  two  daughters,  "  the  same  to  vest  in  them  immediately  on  my 
ieath,  but  to  be  paid  on  their  attaining  their  ages  of  twenty-one  years, 
and  the  interest  thereof  in  the  meantime  to  be  applied  in  their  mainte- 
nance and  education."  Both  the  daughters  died  infants ;  and  it  was 
insisted  that,  as  against  the  real  estate,  the  legacies  must  sink  for  the 
benefit  of  the  devisee  of  the  realty.  But  the  vice  chancellor,  Sir  John 
Leach,  held  that  this  was  prevented  by  the  express  direction  that  the 
legacies  should  vest  on  the  death  of  the  testator ;  and,  therefore,  that  the 
personal  representatives  of  the  daughters  were  entitled  to  the  legacies.1 
But  for  the  express  direction  of  the  testator,  that  these  legacies  should 
vest,  they  would  have  lapsed  by  the  death  of  the  legatees,  before  attaining 
fcho  age  of  twenty-one  years. 

Having  thus  noticed  the  doctrine  of  lapse  in  respect  of  legacies  charge- 
able on  real  estate,  we  will  notice  the  same  doctrine  in  reference  to  lega- 
cies chargeable  on  a  mixed  fund  of  real  and  personal  estate. 

It  has  already  been  shown  that,  in  general,  the  personal  estate  is  the 
proper  fund  for  the  payment  or  legacies,  although  they  be  charged  on  the 
real  estate,  if  the  personal  estate  be  not  expressly  exonerated.2  On  a 
charge  of  the  legacy  on  the  realty,  the  latter  is  merely  auxiliary  to  the 
personal  estate  for  the  payment.  It  seems  to  follow,  and  it  has  been  sc 
adjudged,  that  so  far  as  the  personal  estate  will  go,  it  is  to  be  applied 
and  to  be  governed  by  the  same  rules  we  have  been  considering  in  rela- 
tion to  legacies  payable  exclusively  from  the  personal  estate  ;  and  so  far 
as  the  real  estate  must  be  resorted  to  for  the  payment  of  the  legacies,  the 
case  follows  the  same  rules  as  if  they  were  charged  exclusively  on  tho 
realty. 

Thus,  in  a  leading  case,  where  the  testator  bequeathed  to  his  nephew 

1  Watkins  v.  Cheek,  2  Sim.  &  S.  199.      Hoesen,  1  Comst.  120     Kelsey  >  WeaV- 
■  McKv  v.  Green,  3  J.  Ch.  R.  50.   Lnp-    ern,  2  id.  500. 
ton  v.  Lupton,  2  id.  G14.     Hoes  v.  Van 


Oh.  7-J        Vested  and  Contingent  Legacies.     Lapse.  521 

£500,  payable  at  the  age  of  twenty-five,  and  devised  real  estate  to  trus- 
tees charged  with  the  payment  of  debts  and  legacies,  and  the  legatee 
having  survived  the  testator,  and  died  at  the  age  of  sixteen,  it  was  held 
that  so  much, of  the  legacy  as  was  to  affect  the  real  estate,  failed  by  the 
death  of  the  legatee  before  he  arrived  at  the  age  of  twenty-five ;  and 
that  such  part  of  it  as  the  personal  estate  was  sufficient  to  answer,  vested 
in  the  legatee,  and  was  transmissible  to  his  personal  representatives. 
In  giving  his  judgment  Lord  King  observed,  that  there  was  no  difference 
when  the  real  as  well  as  the  personal  estate  is  charged ;  for  in  such  a 
case,  as  far  as  the  executor  or  administrator  claims  out  of  the  latter,  he 
shall  succeed  according  to  the  rules  of  that  court  where  these  things  are 
determinable,  even  though  the  infant  legatee  dies  before  the  time  of  pay- 
ment ;  but,  as  far  as  the  legacy  was  charged  upon  the  land,  so  far  should 
it,  on  the  legatee's  dying  before  the  legacy  became  payable,  sink.  And 
this  being  the  rule  which  had  of  late  universally  prevailed,  whether  the 
legatee  was  a  child  or  a  stranger,  it  would  be  of  the  most  dangercas  con- 
pequences,  and  disturb  a  great  deal  of  property  to  break  into  it.1 

This  doctrine  is  evidently  recognized  in  this  state,  though  the  main 
reason  for  it  is  not  as  strong  here  as  it  is  in  England.  The  existence 
of  the  rule  was  recognized  by  the  vice  chancellor  of  the  first  circuit, 
in  the  case  of  Marsh  v.  Wheeler,  already  cited.  After  speaking  of  th<a 
rule  with  respect  to  the  sinking  of  legacies  charged  upon  and  paya- 
b'e  out  of  real  estate,  as  being  different  from  that  where  the  legacies  are 
payable  exclusively  out  of  personal  estate,  he  says :  There  are  cases 
where  it  has  been  held  that  a  legacy,  made  up  partly  of  personal  estate, 
and  partly  of  money  charged  upon  lands,  and  to  be  raised  out  of  the 
same,  has,  so  far  as  regarded  the  personal  estate,  vested,  and  lapsed  as 
to  the  part  which  was  to  come  out  of  the  realty.  But  in  no  case  lias  this 
been  decided  where  the  real  estate  was  ordered  to  be  sold  and  converted, 
out  and  out,  into  money,  and  as  such,  disposed  of  in  legacies.  Nor  is 
there  any  reason  for  making  the  distinction,  or  for  applying  the  doctrine 
to  cases  like  the  present.  It  can  only  be  where  lands  are  devised  or  de- 
scend to  the  heir,  charged  with  the  payment  of  a  pecuniary  legacy  to 
some  third  person,  and  payable  at  a  future  day,  or  upon  some  subsequent 
event.  In  such  a  case,  according  to  the  general  rule,  if  the  legatee  hap- 
pen to  die  before  the  time  of  payment,  the  law  favors  the  heir,  and  con- 
siders the  legacy  lapsed  or  merged  in  the  inheritance. 

In  the  case  in  which  these  remarks  were  made,  the  obvious  intention  of 

Duke  of  Cbandos  v.  Talbot,  2  P.  Wins.  G01,  613  and  note.    Prowse  v.  Abingdon, 
I  Atk.  -1S2. 

Ky.  Jvu.  (ifi 


522  Trusts.  LCh.  7 

the  testator  was  to  convert  the  whole  of  his  real  estate,  with  the  excep- 
tion of  a  house  and  lot  devised  to  his  daughters,  into  money,  in  order  tc 
have  the  proceeds  taken  as  a  part  of  his  personal  estate,  to  have  them 
blended  and  all  disposed  of  together  and  as  one  fund  in  payment  of  debts 
and  legacies  of  five  hundred  dollars  apiece  to  the  daughters,  and  so  as  to 
have  the  remainder  divided  between  the  four  sons  as  residuary  legatees. 
The  principle  then  is,  that  the  intention  of  the  testator,  when  properly 
expressed,  shall  prevail.1 


SECTION  VIII. 

OF  LEGACIES,  ABSOLUTE  AND  CONDITIONAL. 

Having  treated  briefly  of  general  and  sjjecific  legacies,  and  of  vested 
and  contingent  legacies,  together  with  the  doctrine  of  lapse,  which  is  an 
incident  to  them,  we  will  proceed  now,  as  proposed,  to  notice  legacies 
absolute  and  conditional. 

A  bequest  to  a  man  generally  of  money  or  personal  property,  is  an 
absolute  legacy,  and,  in  such  a  case,  a  subsequent  direction  to  the  execu- 
tors to  put  the  money  at  interest  for  the  support  of  the  legatee,  does  not, 
in  any  manner,  revoke  or  qualify  the  gift.  It  merely  relates  to  the  in- 
vestment ;  and  being  inconsistent  with  the  absolute  title  before  given  to 
the  legatee,  it  is  null  and  void.  No  valid  qualification  can  be  attached 
to  a  full  title  to  personal  property.2  So  an  absolute  annuity  given  by 
will  is  not  a  trust  within  the  Revised  Statutes,  and  is  alienable  by  the 
annuitant  ;3  and  is  subject  to  his  debts,  on  a  creditor's  bill,  at  the  suit 
of  a  judgment  creditor  who  lias  exhausted  his  remedy  at  law.4  Where 
there  is  an  express  limitation  of  a  chattel  by  words,  which,  if  applied  to  a 
will,  would  create  an  estate  tail,  the  Avhole  interest  vests  absolutely  in  the 
first  taker,  and  the  limitation  over  is  too  remote.5  It  is  the  settled  rule, 
that  the  same  words  which,  under  the  English  law,  would  create  an  estate 
of  freehold,  gives  the  absolute  property  of  a  chattel.6  When  an  absolute 
interest  is  given  to  the  legatee,  a  devise  over  is  void  for  repugnancy.7 

1  Marsh  v.  Wheeler,  2  Edw.  Ch.  R.  157.  B  Moffat  v.  Streng,  10  J.  R.  12. 

a  Dorland  v.  Borland,  2  Barb.  S.  0.  R.  6  Patterson  v.   Ellis,   11   Wend.   25* 

65.  Bradhurst  v.  Bradhurst,  1  Paige,  331. 

■  Degraw   v.   Clason,   11   Paige,   136.  7  11  Wend.  275,  S.  0. 
Gott  v.  Cook.  7  id.  521. 

4  Id. 


Ch.  7  |  Conditional  Legacies.  523 

As  a  legacy  is  absolute,  when  no  condition  is  annexed  to  it,  it  will  pre- 
vent a  repetition  of  the  same  cases,  to  consider  the  nature  and  application 
of  conditions,  in  reference  to  the  testamentary  disposition  of  property. 
One  sort  of  conditions,  namely,  that  the  legatee  should  be  in  life,  at  a 
particular  period,  has  just  been  considered.  It  remains  to  treat  of  other 
conditions,  upon  which  the  existence  of  legacies  may  depend. 

No  precise  form  of  words  is  necessary  to  create  a  condition  in  wills , 
but  whenever  the  intention  of  the  testator  is  clearly  manifested  that  the 
legacy  should  depend  on  a  condition,  and  the  condition  is  not  repugnant 
to  the  estate,  or  contrary  to  the  rules  of  law,  the  intention  will  be  car- 
ried into  effect.1 

Conditions  are  of  two  kinds  ;  conditions  precedent  and  conditions  subse- 
quent. In  the  former  case  the  legatee  has  no  vested  interest  in  the  leg- 
acy, until  the  condition  is  performed ;  and  in  the  latter  the  interest  vests, 
in  the  first  instance,  subject  to  be  divested  on  non-performance  or  breach 
of  the  condition.8 

If  the  condition  be  illegal  or  repugnant  to  the  estate,  it  is  void,  and  the 
legacy  is  absolute.3 

An  example  of  a  condition  precedent  will  be  found  in  a  case  before 
Chancellor  Walworth,  where  the  payment  of  the  legacy  depended  on  the 
reformation  of  the  conduct  of  the  legatee.4  In  that  case  the  testator,  by 
his  will,  required  his  executors  to  pay  to  his  son,  the  complainant,  two 
hundred  dollars  a  year,  and  also  one-fifth  of  the  testator's  estate,  in  case 
the  legatee  should  refrain  from  vicious  habits,  and  conduct  himself  with 
sobriety  and  good  morals.  About  two  years  after  the  testator's  death, 
the  legatee  filed  his  bill  against  the  executors,  insisting  that  he  had  re- 
'ormed.  and  claiming  the  payment  of  his  share  of  the  estate.  The  defend- 
ants had  refused  payment,  because  they  were  not  satisfied  of  the 
complete  reformation  of  the  legatee.  The  chancellor  observed,  that  the 
intention  of  the  testator  would  be  defeated  if  the  complainant  should  re- 
ceive the  bequest  before  he  was  so  far  reformed  as  to  render  it  very  certain 
that  he  would  not  return  to  his  former  vicious  habits.  While  he  justified 
the  executors  in  withholding  the  legacy,  he  declined  to  dismiss  the  bill, 
and  referred  it  to  a  master  to  ascertain  and  report  whether  there  had  been 
such  a  permanent  reformation  in  the  character  and  habits  of  the  complain- 
ant, as  to  entitle  him  to  receive  the  whole  amount  bequeathed  to  him 
at  that  time ;  and  on  the  coining  in  and  confirmation  of  the  report,  if  it 

1  Bhep.  Touch.  433.    Pink  v.  De  Thui-        3  Bradley  v.  Peixoto,  3  Ves.  324. 
eey,  2  M&d.  R.  157.  4  Dustan  v.  Dustan,  1  Paige,  509. 

3  Preston's  Leg  103,  ch.  5. 


524  Trusts.  [Ch.  7 

should  appear  that  such  permanent  reformation  had  taken  place,  that  the 
executors  be  permitted  to  pay  the  whole  sum  to  him,  after  deducting 
therefrom  their  costs  to  be  taxed.  And  if  the  parties  could  not  agree 
upon  the  amount  to  which  he  was  entitled,  that  there  be  a  reference  to  a 
master  to  take  an  account  and  ascertain  such  amount.  And  if  it  should 
appear  by  the  report  of  the  master,  on  the  first  reference  thereby  directed, 
that  such  permanent  reformation  had  not  taken  place,  then  that  the  com- 
plainant's bill  be  dismissed  with  costs. 

The  decision  of  the  chancellor  in  the  foregoing  case,  was  in  conformity 
to  that  of  Sir  William  Grant,  in  a  similar  case.1  In  the  latter  case,  a 
legacy  was  given,  provided  the  legatee  changed  his  course  of  life ;  and 
the  master  of  the  rolls  held  that  this  was  a  condition  that  the  court  would 
carry  into  effect,  and  he  directed  the  master  to  inquire,  whether  the  lega- 
tee had  discontinued  to  frequent  public  houses,  keeping  low  company,  &c. 

In  like  manner,  when  the  testatrix  by  her  will  gave  "  to  the  Associate 
Reformed  Church  of  Broadalbin  five  hundred  dollars,  provided  the  Rev. 
David  Caw  continued  to  be  their  pastor  for  seven  years  to  come,  but  if 
not,  then  it  must  be  paid  over  to  the  said  David  Caw  with  interest,  was 
held  to  be  a  valid  condition  precedent ;  and  the  pastoral  relation  between 
the  said  Caw  and  the  church  having  been  dissolved  by  mutual  consent, 
within  the  seven  years,  it  was  further  held,  that  no  interest  whatever  vest- 
ed in  the  church,  but  that  Caw  was  entitled  to  the  legacy.2 

The  word  provided  is  one  of  the  appropriate  words  for  creating  a  con- 
dition precedent.3  So  any  other  words,  as  "if,"  "  when,"  &c.  may  indi- 
cate that  the  legacy  will  not  vest  until  the  condition  be  performed. 

A  distinction  is  taken  in  regard  to  bequests  on  marriage,  where  it  is  said 
if  to  such  marriage  consent  is  required  ;  such  consent,  unless  the  legacy 
be  given  over,  is  in  general  considered  in  terrorcm  only,  and  in  fact 
amounts  to  a  nullity.4  Courts  of  equity  look  upon  conditions  in  restraint 
of  marriage  with  disfavor ;  if,  therefore,  the  consent  be  given  in  sub- 
stance it  is  sufficient,  and  the  want  of  circumstances  will  be  supplied. 
Thus,  when  an  implied  assent  is  given,  or  a  general  assent  to  any  mar- 
riage the  legatee  may  contract,  the  legacy  is  not  forfeited.5  So  it  will 
not  be  forfeited  if  the  person,  whose  assent  is  required,  encourage  the 


1  Tattersail  v.  Howell,  2  Meriv.  26.  Cleaves  v.  Spurllng,  2  id.  526.     Jervoia 

3  Caw  v.  Robertson,  1  Seld.  125 ;  S.  C,  v.  Duke,  1  Vern.  20.    Atkins  v.  Hicocks, 

I  Barb.  S.  C.  R.  410,  418.  1  Atk.  502.    3  Barb.  418,  supra. 

8  Id.  "  Bac.  Abr.,  Leg.  F. 
*  Webb  v.  Webb,  1  P.  "Williams,  136. 


Ch.  7.]  Conditional  Legacies.  525 

marriage  in  the  first  instance,  and  afterwards  refuse  to  consent  without 
sufficient  cause.1 

Nevertheless,  it  is  well  settled  that  marriage  with  consent,  whether 
before  or  after  twenty-one,  may  be  made  a  condition  precedent  to  a  lega- 
cy, whether  there  be  a  devise  over  or  not,2  if  the  intention  be  otherwise 
clear. 

When  the  condition  of  marriage  with  consent,  is  a  condition  subse- 
quent, the  legatee  will  keep  her  legacy,  though  she  marries  without  the 
required  consent.3 

Suppose  an  executor  or  trustee,  whose  consent  is  required  by  the  will 
to  the  marriage  of  the  legatee,  refuse  to  execute  his  power  by  consent- 
ing, the  court  will  direct  one  of  its  masters  to  inquire  into  the  proposal 
of  marriage,  and  determine  on  its  propriety  ;  and  if  the  marriage  be  found 
suitable,  to  receive  proposals  for  a  settlement  on  the  legatee  and  issue  of 
the  marriage.4 

There  is  a  distinction  between  personal  legacies  and  legacies  chargea- 
ble on  land,  or  devises  of  land.  If  the  legacy  affects  land,  and  there 
be  a  condition  precedent,  the  estate  cannot  vest  till  the  condition  be  strict- 
ly performed,  whether  there  be  a  devise  over  or  not.5  And  if  it  be  sub- 
sequent, the  breach  of  the  condition  operates  to  divest  the  estate.6  But 
in  all  cases  of  personal  legacies,  where  there  is  a  devise  over,  whether  the 
condition  be  precedent  or  subsequent,  the  right  of  the  devisee  over  will 
prevail  against  that  of  the  legatee,  if  the  condition  be  not  performed.7 

It  has  been  already  remarked  that  marriage  ought  to  be  free,  and  that 
the  law  does  not  countenance  such  restrictions  as  unreasonably  deter  per- 
sons from  forming  that  relation.  Therefore  a  devise,  upon  condition  not 
to  marry,  or  not  to  marry  a  person  of  such  a  profession  or  calling,  is  void, 
whether  there  be  a  limitation  over  or  not.  But  while  the  law  will  annul 
such  conditions  as  impose  an  improper  restraint  upon  marriage,  it  will 
uphold  such  as  are  reasonable  and  have  a  tendency  to  guard  the  inexpe- 
rience and  ardor  of  youth  from  being  beguiled  by  the  arts  of  the  subtle 
and  corrupt  who  would  betray  them.  Ilence  conditions  restraining  mar- 
riage, as  to  time,  place,  or  person,  have  been  upheld;3  as  not  to  marry 

1  Strange  v.  Smith,  Ambl.  263.  Mes-  4  Goldsmid  v.  Goldsmid,  19  Vcs.  3G8. 
quott  v.  Mesquett,  2  Vera.  580.  Clarke  v.  Parker,  id.  18,  19. 

*  Aston  v.  Aston,  2  Vera.  452.     Creagh        s  Cary  v.  Bertie,  2  Vera.  333. 

v.  Wilson,  id.  572.     Gillet  v.  Wray,  1  P.        *  Harvey  v.  Aston,  1  Atk.  381,  note. 
"Wins.  284.    Elton  v.  Elton,  3  Atk.  504.        7  Id.     1  Fonb.  Eq.  B.  1,  ch.  4,  §  10. 

Stackpole  v.  Beaumont,  3  Ves.  89.  note  9,  where  all  the  cases  are  collected. 

•  Reynish  v.  Martin,  3  Atk.  332.   Burle-        •  Bac.  Abr.  tit.  Leg.  F. 
ton  v.  Humphrey,  Ambl.  250.     Garret  v. 

Pretty,  2  Vera.  293. 


526  Trusts.  fCh.  7 

before  twenty-one,  not  to  marry  at  York,  not  to  marry  a  papist,  &c.  In 
one  case,  a  proviso  in  a  will  that  if  the  legatee,  the  testator's  daughter, 
should  marry  a  Scotchman,  she  should  forfeit  all  benefit  under  the  will, 
was  held  good.1 

The  consent  to  satisfy  a  condition  precedent  must,  if  vested  in  trustees, 
be  given  by  all  the  acting  trustees,  unless  the  testator  expressly  declare 
that  the  consent  of  the  majority  shall  be  sufficient.  There  is  no  case  in 
which  it  has  been  held  that  the  consent  of  three  trustees  being  required, 
the  consent  of  two  only  will  be  sufficient,  when  the  third  has  not  been 
consulted.  There  is  a  discretion  in  him  as  well  as  in  the  others  ;  and, 
therefore,  in  such  a  case,  the  consent  of  two  only,  without  consulting  the 
third,  does  not  satisfy  the  requirements  of  the  will.2 

If  consent  in  writing  of  the  executors  be  required,  and  there  be  two 
executors,  one  only  of  whom  executes  the  will,  the  consent  of  the  acting 
executor  is  deemed  sufficient ;  and  even  Avithout  a  writing,  it  seems  his 
previous  approbation  of  the  marriage  would  be  deemed  a  substantial 
compliance  with  the  condition.3  If  a  legacy  vests  in  the  legatee,  subject 
to  be  divested  by  marriage  without  consent  of  certain  persons,  and  which 
consent  becomes  impossible  to  be  obtained,  by  reason  of  the  death  of  such 
persons,  the  legacy  is  absolute,  and  discharged  of  the  condition.4  This  is 
upon  the  principle  that  where  a  condition  subsequent  becomes  impossible, 
by  the  act  of  God,  it  is  absolutely  void.5 

A  marriage  in  the  lifetime  of  the  testator,  with  his  consent  or  subse- 
quent approbation,  is  equivalent  to  a  marriage  after  his  death  with  the 
requisite  consent :  as  where  the  testator  devises  land  in  trust  to  permit 
his  daughter  to  receive  the  rents  and  profits  until  her  marriage  or  death, 
and  in  case  she  marries  with  the  consent  of  the  trustees,  then  to  convey 
the  premises  to  her  and  her  heirs  ;  but  if  she  married  without  such  con- 
sent, then  to  convey  to  other  persons :  the  daughter  afterwards,  and  in 
the  lifetime  of  the  father,  married  with  his  consent,  and  he  settled  part 
of  the  land  on  her  and  her  husband.  This  settlement  was  held  to  be  no 
revocation  of  the  devise,  and  the  consent  of  the  father  in  his  lifetime 
dispensed  with  the  condition.6     The  same  rule  applies,  though  the  daugh- 

1  Pen-in  v.  Lyon,  9  East,  170.  Lit.  206,  a.    Aislabie  v.  Kice,  3  Mad.  Ch. 

3  Clarke  v.  Parker,  19  Ves.  17.  K.  256.    Merrill  v.  Emery,  10  Pick.  507. 

3  Worthington  v.  Evans,  1  Sim.  &  Stu.  The  People  v.  Manning,  8  Cowen,  29S. 
165.  Merrill  v.  Bell,  6  Sm.  &  Mar.  730. 

4  Peyton  v.  Berry,  2  P.  Wms.  626.  6  Clarke  v.  Berkley,  2  Vern.  720,   Pal- 
*  Graydon  v.  Hicks,  2  Atk.  18.     Co.    nell  v.  Lyon,  1  Ves.  &  B.  479. 


Ch.  7.1  Conditional  Legacies.  527 

ter  marries  -without  consent,  if  the  father  afterwards  becomes  reconciled 
to  the  match.1 

An  absolute  and  unconditional  consent  once  given  cannot  be  retracted, 
unless  some  objection  occur  which  ought  to  have  prevented  the  consent 
being  given  at  all.2  And  when  a  settlement  on  two  daughters  contained 
a  proviso,  that  if  either  married  without  the  consent  of  her  mother,  it 
should  be  to  her  separate  use ;  and  where  the  mother  proposed  the  mar- 
riage, and  afterwards  refused  consent,  the  marriage  subsequently  taking 
place  without  consent,  was  held  to  be  no  forfeiture.3 

It  was  said  by  Lord  Talbot,  that  "  there  are  not  any  technical  words  to 
distinguish  conditions  precedent  and  subsequent,  but  the  same  words 
may  indefinitely  make  either,  according  to  the  intent  of  the  party  who 
creates  them."4  Neither  does  it  depend  on  the  circumstance  whether 
the  clause  is  placed  prior  or  posterior  in  the  deed  or  the  will,  for  the  same 
words  have  been  construed  to  operate  either  the  one  or  the  other,  accord- 
ing to  the  nature  of  the  transaction.5 

For  an  example  of  a  condition  subsequent,  may  be  mentioned  a  case 
decided  by  Sir  Wm.  Grant,  master  of  the  rolls.6  The  testator  by  his 
will  bequeathed  all  the  residue  of  his  estate  to  trustees  upon  trust,  to 
pay  to  his  son  the  yearly  sum  of  £200,  clear  of  all  deductions,  during 
the  term  of  his  natural  life,  or  until  such  time  as  his  said  son  should 
actually  sign  any  instrument,  whereby  or  in  which  he  should  contract  or 
agree  to  sell,  or  otherwise  part  with  the  same  or  any  part  thereof,  or  in 
any  way  charge  the  same  or  any  part  thereof  as  a  security  for  any  sum 
or  sums  of  money  to  be  advanced  or  lent  to  him  by  any  person  or  persons 
whomsoever,  or  in  any  other  manner  whatever  charge  or  dispose  of  such 
annuity  or  any  part  thereof  by  anticipation,  or  whereby  or  in  which  he 
should  authorize  or  empower,  or  intend  to  authorize  or  empower  any  per- 
son or  persons  whomsoever  to  recover  such  annuity,  or  any  part  thereof, 
except  such  only  as  the  then  next  quarterly  payment,  after  such  authority 
or  power  should  be  given ;  and  he  declared  his  will  to  be,  that  in  case 
his  said  son  should,  at  any  time,  sign  or  execute  any  such  instrument  or 
writing  for  the  purpose,  or  for  any  of  the  purposes  aforesaid,  (except  as 
aforesaid,)  then  and  from  thenceforth  the  same  and  every  part  thereof 

1  Wheeler  v.  "Warner,  1  Sim.  &  Stu.  4  Robinson  v.  Comyns,  Cas.  tetnr.  Tallu 

304.     Smith  v.  Cawdry,  2  id.  358.  166. 

a  Dash  wood  v.  Bulkeley,  10  Ves.  242.  "  ITotham  v.  East  In.  Co.  1  D.  &  E.  645 

8  Ves.  &  B.  234.  per  Ashurst,  J. 

•  Sjtrauge  v.  Smith,  Ambl.  2G3.  •  Shee  v.  Hale,  13  Vea.  404. 


528  Trusts.  [Ch.  7. 

should  cease  to  be  paid  or  payable  to  him,  and  should  sink  into  the 
general  residue  of  the  testator's  personal  estate.  The  legatee,  after  the 
death  of  the  testator,  being  in  confinement  for  debt,  took  the  benefit  of 
the  insolvent  act,  and  the  annuity  mentioned  in  his  father's  will  was 
inserted  in  the  schedule  of  his  property  delivered  in  and  signed  by  him. 
On  a  bill  filed  by  the  assignees  under  the  insolvent  act,  claiming  the 
annuity,  it  was  held  that  the  legacy  was  forfeited,  and  sunk  into  the 
residue  of  the  testator's  estate. 

So  also  where  the  testator  bequeathed  the  surplus  of  his  personal  estate 
to  his  niece,  about  the  age  of  seventeen,  to  be  paid  to  her  at  the  age  of 
twenty-one  years,  and  if  she  should  die  before  twenty-one  or  marriage, 
then  over;  it  was  held  that  the  surplus  vested  in  the  niece,  and  that  the 
bequest  over  was  upon  a  condition  subsequent.1 

In  case  a  condition  precedent  be  impossible  to  perform,  a  different  rule 
prevails  in  respect  of  legacies  of  personal  property,  from  that  which 
obtains  in  relation  to  devises  of  the  realty.  In  the  latter  case,  if  the 
condition  be  impossible  no  estate  vests,  and  the  devise  is  void.2  In  the 
former,  as  the  rules  of  the  civil  law  prevail,  the  bequest  is  single,  that 
is,  discharged  of  the  condition.3 

Where  a  condition  subsequent  is  impossible,  or  becomes  impossible  by 
the  act  of  God,  the  condition  will  be  void,  and  the  legacy  single  and 
absolute ;  and  in  this  case,  the  civil  and  common  law  coincide.4 

If  a  condition  precedent  be  illegal,  by  reason  of  its  requiring  the  per 
formance  of  an  act  that  is  malum  in  se,  as  to  kill  J.  S.,  or  to  burn  a 
house  or  the  like,  not  only  the  condition  but  the  entire  legacy  is  void,  as 
well  by  the  common  as  the  civil  law.5 

But  if  the  oondition  precedent  merely  requires  the  performance  of  some 
act  that  is  not  malum  in  se  but  contra  bonos  mores,  though  by  the  com- 
mon law  both  the  legacy  and  condition  are  void,  yet  by  the  civil  law, 
which  is  followed  by  the  ecclesiastical  courts  and  courts  of  equity,  the 
legacy  is  good,  and  the  condition  only  is  void.  The  legatee,  therefore, 
takes  the  legacy,  as  if  no  condition  was  annexed.  Thus,  a  bequest  to  a 
feme  covert,  on  condition  she  lived  apart  from  her  husband,  was  held  by 
Lord  Northington  to  be  single  and  pure,  and  the  condition  only  to  be 
void  as  contra  bonos  mores.6 


1  Nicholls  v.  Osborn,  2  P.  "Wms.  419.  dish,  Ambl.  358,    Thomas  v.  Howell,  * 

■  Go.  Litt.  206,  b.  Balk.  170. 

8  Swinburne,  pt.  4,  §  6,  pL  2,  3.  6  Co.  Litt.  206,  b. 

4  Aislabie  v.  Rice,  3  Mad.  Ch.  R.  256.  6  Brown  v.  Peck,  1  Eden,  140.    Cooper 

Co.  Litt.  206,  a,  b.     Lowther  v.  Caven-  v.  Remsen,  5  J.  Ch.  R.  463. 


Ch.  7.]  Conditional  Legacies.  529 

This  matter  received  the  consideration  of  Chancellor  Kent  in  a  case 
which  came  several  times  before  him,  and  in  which  he  seems  to  have  re- 
cognized the  foregoing  distinctions.1  In  that  case  the  will  contained  the 
following  clause :  "  I  give  and  devise  to  my  daughter  Eliza  Cooper,  her 
heirs  and  assigns  forever,  all  the  furniture  which  she  has  received  from 
me,  amounting  to  $3570.23,  and  which  now  stands  in  my  books  against 
her.  and  in  full  satisfaction  of  all  further  provisions  out  of  my  estate.  I 
do  give  and  bequeath  to  her,  during  her  separation  from  William  Cooper, 
her  present  husband,  $1000  a  year,  which  sum  is  hereby  charged  upon 
my  real  estate,  and  shall  be  paid  by  the  other  children,  in  proportion  to 
their  income  arising  out  of  their  portions  of  the  real  estate ;  and  I  do 
hereby  declare  it  to  be  my  intention,  that  neither  my  said  daughter  Eliza 
Cooper,  nor  any  of  her  children,  by  the  said  William  Cooper,  shall  inherit 
any  part  or  portion  of  the  real  estate  hereafter  devised,  or  the  rents, 
issues  or  profits  thereof,  as  heirs,  or  heirs  to  any  of  my  other  children, 
nor  shall  she,  nor  any  of  her  said  children,  be  considered  or  adjudged  as 
the  legal  representative  or  representatives  of  any  of  my  other  children, 
so  as  to  be  entitled  to  recover  any  portion  of  my  real  or  personal  estate, 
except  that  which  I  have  hereby  expressly  given  to  her."  At  the  date 
of  the  will  and  before  that  time  the  legatee  and  her  husband,  W.  C,  lived 
separate  and  apart,  and  she  then  resided  with  her  father.  This  separa- 
tion continued  eight  or  ten  months,  when  they  again  lived  and  cohabited 
together.  The  bill  further  stated  that  a  disagreement  existed  between 
the  plaintiff's  husband  and  her  father,  at  the  time  the  will  was  made, 
nnd  which  continued  to  his  death ;  that  shortly  after  her  father's  death, 
she  was  constrained  by  her  husband  to  live  separate  and  apart  from  him, 
and  so  continued  to  live  separate  for  more  than  a  year ;  that  the  separa- 
tion was  not  induced  by  any  desire  on  the  part  of  the  plaintiff  to  obtain 
the  legacy  given  to  her  by  her  father's  will ;  and  she  was,  at  the  time  of 
the  separation,  ignorant  of  the  contents  of  the  will ;  that  the  separation 
was  compulsory  and  against  the  will  of  the  plaintiff;  that  the  real  estate 
wae  more  than  sufficient  to  pay  all  the  debts,  and  the  legacy,  &c. ;  that 
her  husband,  W.  C,  was  unable  to  maintain  her,  and  died  intestate  after 
the  will  took  effect,  and  his  property  was  not  sufficient  to  pay  his  debts  ; 
that  she  had  three  children  by  W.  C.  who  are  infants  and  without  means 
of  support ;  that  she  had  offered  security  to  refund  in  case  of  a  deficiency 
of  assets ;  that  her  sisters  J.  and  E.  had  satisfied  her  as  to  that  part  of 
the  legacy  chargeable  on  their  portion  of  the  real  estate.  She  prayed 
that  the  defendants,  the  executors,  might  be  decreed  to  pay  to  her  the 

'  Cooper  v.  Remsen,  3  J.  Ch.  R.  882,  522  ;  S.  C,  5  id,  4G3. 
Eq.  Jr«  67 


530  Trusts.  [Ch.  7 

arrears  of  the  annuity  given  her  by  her  father's  will,  with  interest,  and 
for  general  relief. 

The  answer  admitted  most  of  the  facts  charged  in  the  bill :  that  the 
plaintiff  and  her  husband  lived  apart  when  the  testator  made  his  will, 
but  were  living  together  when  the  codicil  was  made,  which  fact  was  known 
to  the  testator.  It  was  proved  that  about  three  months  after  the  death 
of  the  testator  the  plaintiff  and  her  husband  separated,  and  continued  to 
live  separate  for  a  year.  The  chancellor  held  that  the  legacy,  depending 
on  a  separation  which  existed  at  the  time  of  the  execution  of  the  will, 
between  the  legatee  and  her  husband,  and  with  a  view  to  that  fact,  the 
condition  annexed  was  lawful  and  proper ;  and  the  separation  having 
ceased,  when  the  will  took  effect  by  the  death  of  the  testator,  there  was 
an  end  of  the  legacy  :  and  a  voluntary  separation  of  the  plaintiff  and  her 
husband,  after  the  death  of  the  testator,  would  not  entitle  her  to  it. 

As  the  legacy  in  this  case  was  charged  on  the  real  estate  of  the  testa- 
tor, and  was  to  be  paid  by  the  other  children  of  the  testator,  in  proportion 
to  their  incomes  arising  out  of  their  portions  of  the  real  estate,  it  was 
governed  according  to  the  rules  already  considered  by  the  common  law, 
and  not  by  the  principles  of  the  ecclesiastical  law.  The  remarks  of  the 
chancellor,  in  every  stage  of  the  cause,  must  be  understood  with  reference 
to  this  fact,  whether  it  was  distinctly  stated  by  him  or  not.  If,  says  the 
chancellor,  the  testator  had  made  the  will  in  reference  to  a  separation  to 
take  place  after  his  death,  it  would  have  been  contrary  to  good  morals 
and  good  policy,  because  it  would  be  holding  out  a  temptation  to  the 
parties  to  separate,  by  private  agreement,  for  the  very  purpose  of 
acquiring  the  annuity.  And  it  would  be  extremely  dangerous  to  allow 
the  wife  to  set  up  a  separation,  subsequent  to  her  father's  death,  and  to 
claim  a  benefit  from  it.  Such  a  claim  is  liable  to  great  abuse,  and  ought 
to  be  viewed  with  extreme  suspicion. 

These  observations  are  unquestionably  sound,  with  reference  to  a 
legacy  governed  by  the  rules  of  the  common  law,  as  in  the  one  under  his 
consideration.  By  that  law  the  legacy  and  the  condition  are  both  void, 
if  the  condition  require  the  performance  of  an  act  against  sound  morals 
and  public  policy,  though  the  act  be  not  malum  in  se.  But  according 
to  the  ecclesiastical  law,  which  prevails  in  respect  of  personal  legacies, 
as  has  been  shown,  the  condition  only  is  void,  and.  the  legacy  is  single, 
freed  from  the  condition.  This  is  illustrated  by  the  case  of  Brown  v. 
Peck,  already  cited,  and  which  is  quoted  without  dissent  by  the  chancel- 
lor in  Cooper  v.  Remsen.1     In  that  case  the  testator  bequeathed  to  his 

1  5  J.  Ch.  R.  4G2. 


Ch.  7.1  Conditional  Legacies.  531 

niece  £2  a  month,  if  she  lived  with  her  husband,  and  £5  a  month,  if  she 
lived  from  him  ;  and  Lord  Northington  was  of  opinion  that  she  was 
entitled  to  the  £5  a  month  payment ;  for  the  condition  being  contra 
ftonos  mores,  the  bequest  was  single. 

Where  a  man  devised,  after  debts  and  legacies  paid,  the  surplus  of  his 
estate  to  his  wife  and  his  son  John,  equally  between  them,  and  adds, 
whom  I  make  my  executors,  and  further  wills  that  she  should  continue 
his  true  widow;  but  if  she  marry  again,  my  will  is,  she  shall  render  the 
right  of  being  my  executrix  to  my  son  Roger,  to  be  partner  with  his 
brother  John  in  the  executorship,  it  was  held  that  by  the  wife's  marrying 
again,  she  had  as  well  lost  her  share  of  the  surplus,  as  her  right  to  the 
executorship.1 

In  Richards  v.  Baker,2  the  testator  bequeathed  to  his  wife  his  goods, 
furniture,  &c.  in  or  belonging  to  his  house,  "  so  long  as  she  continued 
his  widow,  and  no  longer,"  and  he  disposed  of  his  residuary  estate,  but 
gave  no  directions  as  to  what  was  to  become  of  the  property  bequeathed 
to  his  wife  in  the  event  of  her  second  marriage,  Lord  Hardwicke  de- 
cided, that  she  was  entitled  to  them  only  during  her  widowhood.  But 
in  a  later  case  before  Sir  Thomas  Plumer,  M.  R.,  the  testator  bequeathed 
to  his  wife,  "  should  she  survive  and  continue  a  widow,"  all  his  personal 
estate  for  life,  and  he  disposed  of  it  after  her  decease :  the  widow  mar- 
ried again,  and  the  property  for  the  remainder  of  her  life  was  claimed  by 
the  testator's  next  of  kin,  yet  the  court  decided  against  such  claim,  hold- 
ing that  it  was  a  condition  in  terrorem  merely,  and  that  the  widow  was 
entitled  to  the  property  for  life  notwithstanding  a  breach  of  it.3  This 
latter  case  is  pronounced  by  an  eminent  writer,  of  doubtful  authority.4 

A  devise  by  husband  to  his  wife,  or  a  personal  legacy  charged  upon 
land  during  her  widowhood,  is,  in  either  case,  valid.5  In  Lasher  v.  Lasher,' 
the  testator  directed  that  his  wife  should  be  well  and  sufficiently  sup- 
ported and  maintained  by  one  of  his  sons,  out  of  property  bequeathed  to 
him,  so  long  as  she  remained  his  widow.  The  will  gave  to  the  said  son 
in  fee  a  farm  of  one  hundred  acres,  and  the  half  of  a  wood  lot,  being  fif- 
teen acres.  The  validity  of  the  legacy  to  the  wife  was  not  called  in 
question  by  counsel,  and  was  assumed  by  the  court  to  be  valid,  and  the 
case  was  decided  in  favor  of  the  widow  in  an  action  to  recover  for  the 

1  Barton  v.  Barton,  2  Vern.  308.  6  Cruise's  Dig.  by  Greenleaf,  tit.  Cou- 

3  2  Atk.  321.  Lucas  v.  Evans,  3  id.  dition,  §§  66,  67.  Fitchet  v.  Adams,  2 
260.     Harvey  v.  Aston,  1  id.  379.  Str.  1128.     Jordan  v.  Holkbatu,  Ambl. 

a  KarfAee  v.  Bsiflbridge,  1  Mad.  Ch.  R.    209. 
590.  •  13  Barb.  106. 

4  2  Will.  Ex  792. 


532  Trusts.  [Ch.  7 

expense  of  her  support  and  maintenance.  It  is  true  that  the  son,  having 
accepted  the  estate  charged  with  the  support  of  his  mother,  could  not 
call  in  question  the  restriction  on  the  legacy,  as  it  was  in  his  favor. 

The  general  understanding  of  the  profession  in  New- York  is,  that 
either  a  personal  legacy,  whether  charged  on  real  estate  or  not,  or  a 
devise  by  husband  to  his  wife  during  widowhood,  or  until  she  marries 
again,  whether  there  be  a  devise  over  in  case  of  marriage  or  not,  is  valid, 
and  that  the  restriction,  whether  it  be  a  limitation  or  condition,  is  good ; 
and  that  the  legacy  terminates,  or,  if  vested,  becomes  divested,  on  the 
re-marriage  of  the  legatee.1 

But  a  legacy  by  a  stranger,  that  is,  by  a  person  other  than  the  hus- 
band, to  a  widow  upon  condition  that  it  shall  become  void  upon  her  re- 
marriage, is  void,  for  there  is  no  reason  why  a  person  who  does  not  stand 
in  relation  of  husband  to  the  legatee,  should  impose  a  restraint  upon  a 
widow  from  marrying,  any  more  than  upon  a  maid.2 

A  majority  of  the  supreme  court  of  Massachusetts,  in  one  case,  decide:! 
that  a  legacy  by  the  husband  to  his  wife  "  during  her  widowhood  and 
life,"  was  designed  by  the  testator  to  terminate  on  the  subsequent  mar- 
riage of  her  ;  and  that  had  it  been  a  condition  precedent,  the  legacy  could 
not  have  vested  without  showing  performance.  But  being  a  condition 
subsequent,  and  no  limitation  over,  it  was  considered  merely  in  terror  em 
and  the  condition  void  as  in  restraint  of  marriage,  and  that  she  held  it 
notwithstanding  her  re-marriage.3  The  case  in  Burrows'  Reports,4  on 
which  this  decision  rests,  does  not  fully  sustain  the  doctrine  of  the  court 
in  Massachusetts.  In  Long  v.  Dennis  the  devise  was  not  by  the  hus- 
band to  his  wife,  which  it  has  been  seen  stands  upon  its  own  peculiar 
ground,  but  it  was  a  provision  in  the  will  of  the  father,  for  his  son,  and 
for  the  widow  of  the  son,  to  be  void  in  case  he  married  with  any  woman 
not  having  a  competent  portion,  or  without  the  consent  of  the  trustees, 
&c. ;  and  the  only  point  decided  was,  that  the  condition  was  performed  so 
as  to  vest  the  estate  in  the  husband,  if  one  alternative,  viz.  marrying  a 
woman  with  a  competent  marriage  portion,  was  complied  with.  It  did 
not  raise  the  question  of  a  legacy  during  widowhood.     Lord  Mansfield, 

1  In  the  following  cases  "  a  legacy  dur-  Judge  Story  lays  it  down  that  a  legacy 

.ng  widowhood"  was  contained  in  the  on  such  a  condition  is   valid.     Story's 

will,  and  not  made  a  matter  of  objection.  Eq.  Juris.  §  285. 

"Williamson  v.  Williamson,  6  Paige,  298.  a  Godol.  Orph.  Leg.  45,  46.    Bac.Abr. 

Hoes  v.  Van  Hoesen,  1  Barb.  Ch.  R.  379 ;  tit.  Leg.  F. 

S.  C.  on  appeal,  1  Comst.  120.    Sweet  v.  s  Parsons  v.  Winslow,  6  Mass.  169, 178. 

Ch-w.  2  id.  73,  80.    Edwards  v.  Bishop,  4  Long  v.  Dennis,  4  Burr.  2055. 
4  id.  61.     Usher  v.  Lasher,  13  Barb.  106. 


Ch.  7.]  Conditional  Legacies.  53b 

indeed,  speaks  of  conditions  in  restraint  of  marriage  as  odious,  and  that 
they  should  be  held  to  the  utmost  rigor  and  strictness  ;  as  being  contrary 
to  sound  policy.1  But  his  remarks  were  not  applicable  to  conditions 
imposed  by  a  husband,  restraining  his  widow  from  a  second  marriage. 

An  attempt  has  been  made  to  draw  a  distinction  between  an  estate 
limited  to  a  widow,  so  long  as  she  remains  unmarried,  which  is  admitted 
to  be  good,  and  an  estate  upon  condition  subsequent,  to  the  like  effect, 
which  it  is  insisted  is  void.2  We  are  not  aware  that  the  distinction  has 
ever  been  recognized  by  the  New- York  cases,  and  it  is  difficult  to  perceive 
how,  if  the  first  can  be  upheld,  as  it  doubtless  can  be,  the  other  should 
be  rejected.3 

If  a  legacy  be  given  upon  the  performance  of  a  condition  subsequent 
which  is  illegal,  the  rule  at  common  law  and  by  the  civil  law,  adopted  in 
courts  of  equity,  is  the  same,  and  the  condition  is  void,  and  the  legacy  is 
absolute,  freed  from  the  condition,  and  is  as  if  no  condition  had  been 
annexed  to  it.4 

It  is  upon  this  principle  that  conditions  and  qualifications  inconsistent 
with,  and  repugnant  to  the  gift,  are  wholly  void,  and  are  to  be  rejected. 
This  rule  is  well  illustrated  by  a  case  decided  by  Lord  Alvanley,  master 
of  the  rolls.  The  case  was  this :  the  testator,  among  other  things, 
bequeathed  to  his  son  the  dividends  arising  from  £1G20  of  bank  stock, 
for  his  support,  during  his  natural  life  ;  but  at  his  decease  the  said  stock, 
principal  and  interest,  were  given  to  his  heirs,  executors,  administrators 
Mid  assigns;  but  if  he  attempted  to  dispose  of  all  or  any  part  of  the  said 
bank  stock,  such  attempt  should  exclude  him  from  any  benefit  of  the  will, 
and  should  be  a  forfeiture,  and  the  fund  go  to  the  testator's  other  chil- 
dren. The  bill  was  filed  by  the  legatee  to  compel  the  administrator 
with  the  will  annexed  to  transfer  the  said  stock  to  the  legatee,  ami  the 
court  held  that  the  condition  annexed  to  the  legacy  was  repugnant  to  and 
inconsistent  with  the  interest  given  to  the  legatee  in  the  stock,  and  there- 
fore void;  and  he  directed  the  stock  to  be  transferred  accordingly.  In 
disposing  of  the  case  the  master  of  the  rolls  said :  I  find  it  laid  down  as 
a  rule  long  ago  established,  that  where  there  is  a  gift  with  a  condition 

1  Lord  Eldon  questions  the  authority  3  A  testamentary  provision  in  the  will 

of  Long  v.  Dennis,  in  Clarke  v.  Parker,  of  a  father  for  the  support  of  a  daughter, 

19  Ves.  19,  20.  until  her  marriage,  is,  in  general,  thedic- 

1  Middleton  v.  Rice,  1  Penn.  Law  Jour-  tate  of  humanity  and  paternal  love,  and 

tial,  229,  N.  S.     Bennett  v.  Robinson,  10  is  believed  to  be  unobjectionable 

Watts.  848.     Cruise's  Dig.  vol.  2,  tit.  13,  *  Co.  Litt,  200,  a,  b.     Poor  v.  Mial,  6 

ch    1,  ^  66   note.  Mad.  II.  32. 


D34  Trusts.  [Ch.  i 

inconsistent  with  and  repugnant  to  such  gift,  the  condition  is  wholly  void 
A  condition  that  tenant  in  fee  shall  not  alien  is  repugnant,  and  there 
are  many  other  cases  of  the  same  sort.  In  all  these  cases  the  gift  stands, 
and  the  condition  or  exception  is  rejected.1 

With  regard  to  the  performance  of  conditions,  there  is  a  difference 
between  such  as  are  precedent  and  such  as  are  subsequent.  The  general 
rule,  in  regard  to  conditions  precedent,  is,  that  they  must  be  strictly  per- 
formed. Nevertheless,  by  the  civil  law,  which  in  this  respect  is  adopted 
by  courts  of  equity,  if  the  condition  is  performed  cy  pres,  as  it  is  termed, 
that  is,  so  as  in  substance  to  fulfill  the  intention  of  the  testator,  it  is  suf- 
ficient.2 Swinburne  gives  an  example  of  the  doctrine  of  the  civil  law, 
thus  :3  "  If  A.  bequeath  a  legacy  to  B.  in  case  he  erect  a  monument  to 
A.  within  three  days  after  A.'s  death :  although  B.  should  not  literally 
comply  with  the  condition,  he  would  be  entitled  to  the  legacy  upon  build- 
ing the  monument  within  a  reasonable  time,  since  the  erection  would  be 
considered  the  motive  and  essence  of  the  bequest,  and  the  time  appointed 
for  the  building  but  a  mean  to  expedite  the  business."  On  the  same 
principle,  where  a  legatee  was  required  to  execute  a  release  within  a  cer- 
tain time,  it  has  been  held,  when  there  was  an  adequate  reason  for  not  exe- 
cuting it  within  the  time  specified,  if  it  was  in  truth  executed  within  a  rea- 
sonable time,  it  was  a  substantial  compliance  with  the  direction  of  the  will. 
The  main  object  of  the  will  was  to  obtain  the  release,  and  the  time  within 
which  it  was  to  be  executed  was  merely  subsidiary  to  the  main  object.4 

The  observance  of  time  may  however  become  an  important  element  in 
the  title  to  the  legacy,  where  there  is  a  limitation  over,  upon  the  non- 
performance of  the  first  legatee.5  Thus,  Avhere  the  testator,  reciting  in  his 
will  the  probability  that  the  legatee  was  not  living,  bequeathed  to  him  a 
sum  of  money  upon  the  express  condition  that  he  should  return  to  Eng- 
land and  personally  claim  the  same  of  the  executrix,  or  in  the  church 
porch ;  and  if  he  should  not  so  claim  within  seven  years,  to  be  presumed 
dead,  and  the  legacy  to  fall  into  the  residue.  The  legatee  not  having 
returned,  and  dying  abroad  within  the  seven  years,  the  legacy  was  held 
not  to  be  due.6 

"With  respect  to  conditions  subsequent,  the  general  rule  is,  that  they 
are  to  be  construed  with  great  strictness,  since  they  go  to  divest  an  estate 

1  Bradley   v.    Peixoto,    3   Ves.    324.  "  Simpson  v.  Vickers,  14  Ves.  341. 

Schennerhorn  v.  Negus,  1  Denio,  448.  5  Id. 

3  Swinburne,  pt.  4,  §  7,  pi.  4.  6  Tulk  v.  Howlditch,  1  Yes.  &  B.  248 

*  Id.  §  6,  pi.  11.  Burgess  v.  Robinson,  1  Mad.  E.  172 


Ch.  7.]  Lpoacies  to  Executors.  o3c 

which  has  been  already  vested.  Conditions  which  destroy  an  estate  are 
taken  strictly,  and  a  forfeiture  should  not  prevail  upon  doubtful  construc- 
tions of  evidence.1 

Where  a  condition  which  is  to  divest  an  estate  becomes  impossible  by 
the  act  of  God,  the  condition  is  discharged.  Thus,  if  a  devise  be  to  A. 
for  eight  years,  remainder  to  B.  in  fee  upon  condition  that  he  settles  and 
resides  on  the  land,  and  B.  dies  during  the  eight  years,  his  heirs  take  his 
vested  remain  ]£i\2 

To  this  head  of  conditional  legacies  belong  legacies  to  executors,  in 
their  character  of  executors.  In  such  case  it  is  well  settled  that  to 
entitle  the  legatee  to  his  legacy,  he  must  take  upon  himself  the  duty  of 
the  office,  with  a  bona  fide  intention  to  execute  the  trusts  which  the  office 
imposes, 

A  legacy  may  be  given  to  a  person  named  as  executor,  as  a  mark  of 
the  testator's  regard,  and  independently  of  the  office  of  executor.  In  such 
a  case  the  assumption  of  the  office  is  not  necessary  to  entitle  the  legatee 
to  the  bequest.  The  two  questions  which  usually  arise  in  this  class  of 
cases,  are,  1st,  where  a  legacy  shall  be  said  to  be  given  to  a  man  in  his 
character  of  executor  ;  2d,  and  what  shall  be  a  sufficient  assumption  of 
the  office  to  entitle  the  legatee  to  a  legacy  so  given. 

(1.)  The  prima  facie  presumption  is,  that  a  legacy  to  a  person  appointed 
executor  is  given  to  him  in  that  character ;  and  the  burden  is  cast  upon 
him  to  show,  from  the  whole  scope  of  the  will,  that  the  gift  was  intended 
for  the  person,  as  a  friend  or  a  relative,  rather  than  as  annexed  to  the 
office.3  As  was  said  by  the  master  of  the  rolls  on  one  occasion,  nothing 
is  so  clear,  that  if  a  legacy  is  given  to  a  man  as  executor,  whether  ex- 
pressed to  be  for  care  and  pains  or  not,  he  must,  in  order  to  entitle  him- 
self to  the  legacy,  clothe  himself  with  the  character  of  executor.4 

The  presumption  will  be  rebutted  if  it  shall  appear,  from  the  whole 
will,  that  the  legacy  is  bequeathed  to  the  legatee  in  his  personal  char- 
acter, independently  of  his  representative  character  as  executor.  This 
is  exemplified  by  an  early  case,  where  the  testator,  as  an  encouragement 
to  his  executors,  who  were  four  in  number,  to  accept  of  the  trust  and  ex 
ecutorship,  gave  to  each  of  them  £100  and  £12  apiece  for  mourning, 
and  to  each  of  them  a  ring,  and  £10  a  year  for  their  trouble.  Lord  Chan- 
cellor Cowper  said,  that  notwithstanding  the  condition  of  the  acceptance 

3  Ilogeboora  v.  Hall,  24  Wend.  146.  3  Stackpole  v.  Howell,  13   Ves.  41S. 

3  McLacllar    v.  McLachlan,  9  Paige,    Dix  v.  Reed,  1  Shu.  &  Stu.  237. 
534.  4  Harrison  v.  Rowley,  4  Yes.  21 8. 


536  Trusts.  [Ch.  7. 

might  seem  to  run  to  all  the  legacies,  yet  the  executors,  though  they  did 
not  act,  should  have  their  rings  and  mourning,  these  being  intended  them 
immediately,  and  not  to  wait  their  time  of  acceptance ;  but  that  they 
should  not  have  their  £100  and  an  annuity  of  £10  each,  unless  they 
accepted  of  the  trust.1 

(2.)  With  regard  to  what  will  be  a  sufficient  assumption  of  the  character 
of  executor  to  entitle  the  legatee  to  a  legacy,  bequeathed  to  him  in  the 
character  of  executor,  the  proving  of  the  will,  with  the  intention  to  act 
under  it  in  the  executorship,  is  undoubtedly  a  performance  of  the  condition.2 

Under  the  New-York  Revised  Statutes,  probate  of  a  will  cannot  be 
granted  Avithout  a  citation  to  the  widow  and  next  of  kin  of  the  deceased, 
nor  can  letters  testamentary  be  granted  until  thirty  days  after  probate, 
if  an  affidavit  shall  be  made  and  filed  with  the  surrogate  by  the  widow, 
next  of  kin,  legatee  or  creditor,  setting  forth  that  such  persons  intend  to 
file  objections  against  granting  such  letters,  and  stating  therein  their 
belief  that  valid  objections  exist  to  the  granting  of  such  letters.3  Should 
the  executor  survive  the  testator,  but  die  before  letters  testamentary  were 
issued,  it  would  seem  that  his  representatives  would  be  entitled  to  the 
legacy,  if  he  had  in  good  faith  commenced  proceedings  for  obtaining  let- 
ters testamentary  on  the  will,  or  joined  in  such  proceedings  by  his  asso- 
ciates.4 Whether  the  death  of  the  executor  after  the  testator,  and  without 
the  knowledge  on  the  part  of  the  executor  that  he  was  named  as  such  in 
the  will,  would  occasion  a  lapse  of  the  legacy,  has  not  perhaps  been  de- 
cided.5 In  such  a  case,  the  failure  to  comply  with  the  condition  is  not 
occasioned  by  any  intention  not  to  accept  the  legacy  and  the  executor- 
ship, but  is  occasioned  by  the  act  of  God.  There  is  certainly  no  renun- 
ciation of  the  office,  and  no  neglect  or  backwardness  in  accepting.  It 
would  seem,  on  principle,  that  the  legacy  would  in  such  a  case  go  to  the 
representatives  of  the  legatee.6 

A  legacy  given  to  an  executor  for  care  and  pains  is  not  to  be  regarded 
in  the  light  of  a  debt,  or  as  founded  on  contract,  nor  to  be  governed  by 
the  principles  applicable  to  contracts.  Such  a  legacy,  on  a  failure  of 
assets  to  pay  debts  and  legacies,  must  abate  like  other  legacies,  which  it 
would  not  do  if  it  were  merely  a  debt.7 

WThile,  in  general,  it  is  the  duty  of  a  person  to  whom  a  legacy  is  be- 

1  Humberston    v.   Huniberston,    IP.  4  Harrison  v.  Rowley,  4  Ves.  212. 

Wms.  333.     Dix  v.  Reed,  1  Sim.  &  Stu.  6  Id.  215. 

237.     Corkerell  v.  Barber,  2  Russ.  Ch.  C.  6  Brydges  v.  Wotton.  1  Ves.  &  B.  134 

585.  '  Morris  v.  Kent,  2  Edw.  Ch.  R.  175, 

3  Harrison  v.  Rowley,  4  Ves.  212.  179.     Fretwell    v.   Stacy,   2   Vern.  434. 

*  L.  of  1837,  pp.  524,  528,  §§  7,  22.  Atfy  Gen.  v.  Rubbins,  2  P.  Wms.  25. 


Oh.  7.]  Legacies  to  Executors.  537 

queathed  for  care  and  pains,  to  act  promptly,  and  while  any  unnecessary 
delay  of  the  legatee  in  accepting  the  trust,  may  be  laid  hold  of  by  the 
court  to  deprive  him  wholly  of  the  legacy,  yet  it  seems,  if  the  legatee 
finally  accepts,  he  may  be  allowed  such  portion  of  the  legacy  as  his  ser- 
vices bear  to  the  whole  duty  imposed  upon  him  by  the  will,  as  the  induce- 
ment for  giving  the  legacy.1  Thus,  in  the  case  of  Morris  v.  Kent,  just 
cited,  the  testator  by  his  will  appointed  his  widow  and  the  defendant  ex- 
ecutors of  his  will ;  and  accompanied  the  appointment  of  the  defendant 
with  a  bequest  in  these  words:  "hereby  giving  my  said  executor 
$10,000  for  his  care  and  trouble  in  executing  that  office."  The  widow 
proved  the  will,  and  the  defendant  Kent  being  apprehensive  that  there 
would  not  be  enough  of  the  estate  left,  after  paying  the  debts,  to  satisfy 
his  legacy  or  to  compensate  him  for  the  care  and  trouble  which  would 
attend  the  discharge  of  his  duties,  hesitated  about  taking  upon  himself 
the  office  of  executor ;  and  at  one  period  actually  resolved  not  to  under- 
take the  trust,  and  he  so  informed  the  widow.  In  consequence  of  his  not 
taking  upon  himself  the  trust,  with  the  widow,  the  latter  was  under  the 
necessity  of  appointing  an  agent  to  attend  the  affairs  of  the  estate  ; 
and  for  this  purpose  she  employed  a  professional  gentleman,  who  contin- 
ued in  such  agency  about  a  year,  and  to  whom  she  allowed  the  sum  of 
$4000.  Subsequently  the  defendant,  at  the  earnest  request  of  the  ex- 
ecutrix, qualified  as  executor  and  took  upon  himself  the  active  duties,  and 
continued  to  discharge  them  down  to  the  filing  of  the  bill,  having  received 
and  disbursed  large  sums  of  money  on  account  of  the  estate.  The  balance 
in  his  hands  he  claimed  to  apply  towards  the  payment  of  the  legacy  of 
$10,000.  The  bill  was  filed  for  an  account,  and  the  complainants  insisted 
that  the  defendant  was  entitled  to  no  part  of  the  legacy,  while  he  claimed 
the  whole  of  it. 

The  vice  chancellor  said  that  the  legacy  in  this  case  was  given  to  the 
defendant  in  his  character  of  executor ;  it  being  expressly  intended  as  a 
Datisfaction  for  his  care  and  trouble  in  executing  the  office.  It  is  there- 
fore a  conditional  legacy ;  and.  according  to  the  well  established  rule  in- 
*uch  cases,  the  defendant  would  not  be  entitled  to  claim  payment  without 
clothing  himself  with  the  character  of  executor,  or,  in  other  words,  without 
accepting  the  office  and  undertaking  to  discharge  its  duties.  This  the  de- 
fendant has  done  ;  but  not  without  hesitation  :  besides  the  delay  of  more 
than  a  year,  and  even  a  refusal  at  one  period  to  qualify.  Such  refusal,  how- 
ever, was  not  om  absolute  renunciation.     He  was  still  at  liberty  to  qualify. 

1  Morris  v.  Kent   e  Edw.  Ch.  R.  174. 
Eg.  J  uk.  (3S 


538  Trusts.  [Ck  7 

The  question  then  became  one  as  to  what,  if  any,  deduction  should  be 
made  from  the  legacy. 

The  vice  chancellor  upon  this  point  said,  that  it  must  be  admitted  that 
where  a  specific  sum  is  proposed  as  a  compensation  for  an  entire  su'vice 
and  only  a  part  is  performed,  it  is  but  reasonable  and  just  the  reward 
should  oe  proportioned  to  the  extent  of  the  service  dono  He  admitted 
that  this  principle  of  natural  justice  and  equity  is,  in  general,  confined 
to  matters  of  contract,  and  does  not  apply  as  between  the  testator  and 
his  executors  in  relation  to  a  legacy  for  care  and  trouble,  because  such 
legacy  is  not  a  matter  of  convention  or  agreement,  but  proceeds  from  the 
mere  bounty  of  the  testator,  like  any  other  legacy  ;  that  the  executor  is 
under  no  legal  obligation  to  accept  the  office  ;  he  enters  into  no  stipula- 
tion or  agreement  with  his  testator  to  this  effect,  and  may  decline  it  if  he 
chooses  ;  and  as  the  legacy  is  given  to  him  in  this  capacity,  or  is  expressed 
to  be  for  his  care  and  trouble  in  executing  the  office,  the  law  interposes 
no  further  than  to  attach  to  the  gift  an  implied  condition  of  his  accepting 
the  office,  so  that  if  the  executor  substantially  complies  with  the  condi- 
tion, he  becomes  entitled  to  the  bounty  of  the  testator,  and  then  there  is 
to  be  no  apportionment  according  to  the  degree  of  care  and  trouble,  or 
value  and  extent  of  the  services  performed. 

But  while  these  things  are  so,  and  in  none  of  the  cases  has  an  abate- 
ment or  apportionment,  according  to  the  services  rendered,  been  made  a 
question,  still  no  case  has  denied  the  right  of  the  court,  in  a  proper  case, 
to  interfere  with  the  amount  of  a  legacy,  in  a  special  case  of  that  sort : 
and  he  thought  the  present  called  for  such  interference.  And  he  accord- 
ingly held,  that  the  defendant's  legacy  should  be  liable  to  a  deduction  by 
reason  of  the  necessity  to  which  his  refusal,  in  the  first  instance,  subjected 
the  executrix  of  employing  an  agent,  and  of  the  expense  such  agency 
occasioned. 

Though  the  case  of  Morris  v.  Kent  (supra)  is  without  precedent,  it 
was  nevertheless  decided  upon  sound  principles  of  natural  justice  and 
equity.  There  could  be  no  doubt  that  the  legacy  was  intended  as  a 
compensation  for  the  care  and  pains  of  the  legatee,  in  the  trust  confided 
to  him.  It  would  be  a  fraud  upon  the  bounty  of  the  testator,  to  permit  the 
executor  to  receive  the  whole  legacy,  unless  he  performed  the  whole  ser- 
vice, or  was  defeated  in  the  performance  of  it  by  death  after  he  had  entered', 
upon  it.  And  it  would  be  just  to  both  parties,  if  the  legatee  performed 
a  substantial  part  of  the  service,  that  he  should  receive  such  portion  of 
the  intended  recompense,  as  the  service  actually  performed  bore  to  the 
whole  service  to  be  performed  at  the  death  of  the  testator. 

Though,  in  general,  the  obtaining  probate  of  the  will  is  a  sufficient 


Oh.  7.J  Cumulative  Legacies.  539 

compliance  with  the  condition  to  entitle  an  executo: ,  to  whom  a  legacy  is 
given  in  that  character,  to  hold  the  said  legacy,  yet  if  it  be  made  to 
appear  that  this  act  of  obtaining  probate  was  merely  colorable  and  with 
no  intention  of  performing  the  trust,  but  merely  to  get  the  legacy,  a 
court  of  equity  will  not  aid  the  legatee  in  obtaining  it.  Thus,  where  the 
testator  appointed  four  executors,  and  gave  to  each  who  should  prove  his 
will,  and  act  in  the  execution  of  it,  a  legacy  of  £1500  and  an  annuity  of 
£100.  All  the  executors  proved  the  will,  and  soon  afterwards  a  bill 
was  filed  to  carry  the  trusts  into  execution.  After  this,  one  of  the 
executors  ran  away  with  the  testator's  infant  daughter,  and  went  through 
a  ceremony  of  marriage  with  her  abroad,  which  was  afterwards  annulled 
by  the  spiritual  courts :  Lord  Thurlow  held,  that  the  executor's  concur- 
rence in  the  probate,  under  those  circumstances,  did  not  entitle  him  to 
the  legacy  or  the  annuity,  for  the  facts  showed  that  he  had  no  real  inten- 
tion of  acting  under  the  will.1 


SECTION  IX. 


OF    CUMULATIVE    LEGACIES. 


There  is  a  distinction  in  the  cases  between  a  repetition  of  a  prior 
bequest  to  the  same  legatee  in  the  same  will  or  codicil,  and  an  additional 
bounty  given  to  one  to  whom  in  the  same  will,  or  in  another  will  or  codicil, 
a  legacy  has  been  bequeathed.  In  the  former  case,  the  legatee  takes 
only  one  of  them ;  in  the  latter,  the  legacies  are  treated  as  cumulative, 
and  the  legatee  takes  the  whole.  Thus,  a  bequest  of  two  annuities  of 
equal  amount  in  the  same  will  to  the  same  person,  was  held  to  be  a  repe- 
tition, and  not  accumulative.2  It  depends  essentially  on  the  intention  of 
the  testator,  to  be  collected  from  the  whole  will,  whether  the  legacy  shall 
be  treated  as  a  repetition,  or  as  cumulative.  In  an  early  case  in  this  state, 
Kent,  chief  justice,  after  a  review  of  numerous  cases,  stated  the  general 
rule  on  this  subject  to  be,3  that  where  the  sum  is  repeated,  in  the  same 
writing,  the  legatee  can  take  only  one  of  the  sums  bequeathed.  The  latter 
6um  is  held  to  be  a  substitution,  and  the  bequests  are  not  taken  cumulative- 
ly, unless  there  be  some  evident  intention  that  they  should  be  so  consid- 
ered, and  it  lies  with  the  legatee  to  show  that  intention,  and  rebut  tii€ 

1  Harford  v.  Browning,  1  Cox,  302.  »  De  Witt  v.  Yates,  10  J.  H.  158. 

3  Ilolford  v.  Wood,  4  Yes.  76. 


540  Trusts.  [Ch.  7. 

contrary  presumption.  But  where  the  two  bequests  are  in  different 
instruments,  as  by  will  in  the  one  case,  and  by  a  codicil  in  the  other,  the 
presumption  is  in  favor  of  the  legatee,  and  the  burden  of  contesting  that 
presumption  is  cast  upon  the  executor.  The  presumption  either  way, 
whether  against  the  cumulation,  because  the  legacy  is  repeated  in  the  same 
instrument,  or  whether  in  favor  of  it,  because  the  legacy  is  by  different  in- 
struments, is  liable  to  be  controlled  or  repelled  by  internal  evidence,  and 
the  circumstances  of  the  case.1  This  question,  which  appears  to  have  arisen 
so  often,  and  to  have  been  so  learnedly  and  ably  discussed  in  the  English 
courts,  was  equally  familiar  to  the  civil  law.  The  same  rule  existed  there 
and  was  subject  to  the  same  control.  (Dig.  30.  1.  34 ;  Dig.  23.  3.  12.) 
The  civil  law  puts  the  case  altogether  upon  the  point  of  the  testator's 
intention  ;  but  then,  if  the  legacy  was  repeated  in  the  same  instrument, 
it  required  the  highest  and  strongest  proof  to  accumulate  it.  Eviden- 
tissimis  probationibus  ostendatur  testatorem  multiplicasse  legatum 
voluisse. 

When  there  is  no  internal  evidence  of  the  intention  of  the  testator, 
the  following  positions  of  law  appear  to  be  established  by  the  cases  to 
which  reference  has  been  made. 

1.  If  the  same  specific  tiling  is  bequeathed  twice  to  the  same  legatee 
in  the  same  will,  or  in  the  will  and  again  in  a  codicil,  in  that  case  he  can 
claim  the  benefit  only  of  one  legacy,  because  it  could  be  given  no  more 
than  once.2  2.  Where  two  legacies  of  quantity  of  equal  amount  are 
bequeathed  to  the  same  legatee  in  one  and  the  same  instrument,  there 
also  the  second  bequest  is  considered  a  mere  repetition,  and  he  shall  be 
entitled  to  one  legacy  only.  3.  Where  two  legacies  of  quantity  of  unequal 
amount  are  given  to  the  same  person  in  the  same  instrument,  the  one  is 
not  merged  in  the  other,  but  the  latter  shall  be  regarded  as  cumulative, 
and  the  legatee  is  entitled  to  both.  4.  Lastly,  where  two  legacies  are 
given  simpliciter,  to  the  same  legatee  by  different  instruments,  in  that 
case  also  the  latter  shall  be  cumulative,  whether  its  amount  be  equal  or 
unequal  to  the  former.3 

1  Godol.  Orph.  Leg.  pt.  3,  ch.  20,  §  46.  id.  4G2.     Osborne  v.  The  Duke  of  Leeds, 

Swinb.  pt.  7,  ch.  21,  §  13.     The  Duke  of  5  Ves.  309. 

St.  Albans  v.  Beauclerck,  2  Atk.   636.  2  2  Will.  Ex.  800.    Toller,  335. 

Garth  v.  Meyrick,  1  Bro.  SO.     Bridges  v.  3  See  cases  under  preceding  note,  and 

Morrison,  id.  389.     Hooley  v.  Hatton,  id.  Benyon  v.  Benyon,  17  Ves.  34.     Balie  v 

390,  n.    Wallop  v.  Hewett,  2  Ch.  R.  37.  Butterfield,  1  Cox,  392.    The  Duke  of  St. 

Newport  v.  Kinaston,  id.  58.     James  v.  Albans  v.  Beauclerck,  2  Atk.  636,  638  et 

Sommens,  2  H.  Bl.  214.     Allen  v.  Cullen,  seq.  where  the  whole  doctrine  is  explain* 

8  Ves.  jr.  289.     Barclay  v.  WainewHght,  ed  fully. 


Ch.  7.]  Cumulative  Legacies.  541 

But  in  many  cases  there  is  internal  evidence  of  the  intention  of  the 
testator,  that  the  one  legacy  is  a  mere  substitution  for  the  other.  In 
such  cases  the  intention  must  prevail. 

On  the  other  hand,  the  general  inference  that  legacies  are  cumulative, 
arising  from  the  fact  of  their  being  for  an  unequal  amount,  or  given  by 
different  instruments,  or  where  different  reasons  are  assigned  for  the  tes- 
tator's bounty,  may  be  strengthened  by  internal  evidence ;  as  where  the 
legacies  are  of  different  kinds,  or  payable  at  different  times,  or  belong  to 
different  classes,  as  that  one  is  vested  and  the  other  contingent.1 

In  De  Witt  v.  Yates,  (supra,)  the  only  circumstance  to  show  that  the  tes- 
tator intended  the  second  legacy  to  be  cumulative  was,  that  the  latter 
was  charged  upon  a  person  in  respect  of  real  estate  devised  to  him. 
But  this,  the  court  thought,  afforded  no  intention  to  accumulate.  The 
inference  is  the  other  way.  It  was  only  strengthening  the  security  of 
the  legacy  by  means  of  the  charge. 

In  the  cases  we  have  considered,  the  question  has  been,  in  general, 
whether  the  intention  is  sufficiently  manifested  by  the  instrument  by 
which  the  legacy  is  given,  to  enable  the  court  to  determine  whether 
the  legacy  is  a  mere  repetition,  or  was  intended  to  be  cumulative.  It 
may  be  proper,  in  conclusion,  to  say,  that  parol  evidence  is  inadmissible 
to  show  the  intent  of  the  testator,  whether  the  testator  intended  by  the 
legacy  to  confer  a  double  benefit  or  not.  Although  there  are  some  dicta 
to  the  contrary,  yet  the  subject  was  put  at  rest  by  the  vice  chancellor,  in 
a  well  considered  opinion.  "  Our  primary  principle,"  says  Sir  John 
Leach,  V.  Ch.,2  (:  is,  that  evidence  is  not  admissible  to  contradict  a  written 
instrument.  In  some  cases  courts  of  equity  raise  a  presumption  against 
the  apparent  intention  of  a  testamentary  instrument,  and  then  they  will 
receive  evidence  to  repel  that  presumption  ;  for  the  effect  of  such  testi- 
mony is  not  to  show  that  the  testator  did  not  mean  what  he  has  said,  but, 
on  the  contrary,  to  prove  that  he  did  mean  what  he  has  expressed. 

"  Thus,  where  the  court  raises  the  presumption  against  the  intention  of  a 
double  gift,  by  reason  that  the  sums  and  the  motive  are  the  same  in  both  in- 
struments, it  will  receive  evidence  that  the  testator  actually  intended  the 
double  gift  he  has  expressed.  In  like  manner  evidence  is  received  tc 
repel  the  presumption  raised  against  an  executor's  title  to  the  residue, 
from  the  circumstance  of  a  legacy  given  to  him,  and  to  repel  the  pre- 
sumption that  a  portion  is  satisfied  by  a  legacy.     In  all  these  cases  the 

1  Masters  v.  Masters,  1  P.  Wins.  42-i.    Puss.  Ch.  0.  257.     Mackenzie  /.  Mackeii- 
Cnnie  v.  Pye,  17  Ve9.  4G2.     Hodges  v.    zie,  id.  202. 
Peacock    3  id.  735       Wray  v.  Field,  2        ■  Hurst  v.  Peach,  5  Mad.  351,  359. 


542  Trusts.  [Ch.  7. 

evidence  is  received  in  support  of  the  apparent  effect  of  the  instrument, 
and  not  against  it. 

"  Here  the  evidence  tendered  is  not  in  support  of  the  apparent  effect 
of  the  instrument,  but  directly  against  it.  This  codicil  leaves  unrevoked 
the  former  legacy  of  £300  to  the  defendant,  and  makes  to  him  a  further 
substantive  gift  of  £500.  The  evidence  tendered  is,  that  the  testatrix 
did  not  mean  this  as  a  further  gift  of  £500,  but  meant  to  substitute  the 
£500  in  the  place  of  the  former  £300. 

"  I  am  of  opinion,  therefore,  that  such  evidence  cannot  be  received 
without  breaking  in  upon  the  primary  rule,  that  parol  evidence  is  not  ad- 
missible against  the  expressed  effect  of  a  written  instrument."1 


SECTION  X. 


OF    SATISFACTION. 


In  administering  the  law  in  relation  to  legacies,  courts  of  equity  arc 
frequently  called  upon  to  determine  whether  the  legacy  be  intended  as  a 
bounty,  or  a  payment  of  a  debt  due  by  the  testator  to  the  legatee.  It  is 
an  established  rule  in  courts  of  equity,  that  where  a  debtor  bequeaths  to 
his  creditor  a  legacy  equal  to,  or  exceeding  the  debt  due,  it  shall  be  pre- 
sumed, in  the  absence  of  any  intimation  of  a  contrary  intention,  that  the 
legacy  was  meant  by  the  testator  as  a  satisfaction  of  the  debt.2  Thus, 
where  W.  was  indebted  to  the  testatrix  on  bond  and  mortgage  $4000, 
and  the  testatrix  owed  him  on  account  less  than  $2400,  and  she  declared 
by  her  will,  that  on  W.'s  paying  $1600  the  bond  and  mortgage  should  be 
■discharged,  which  was  done  accordingly,  and  it  appeared  by  conversations 
netween  W.  and  the  testatrix,  that  she  intended  the  bequest  should  go 
*o  discharge  the  debt  due  to  him,  it  was  held  that  the  legacy  operated  as 
payment,  and  would  be  so  treated  in  a  court  of  law,  in  an  action  by  W. 
brought  against  the  executors  to  recover  the  debt.  The  parol  evidence  in 
this  case  did  not  tend  to  vary  or  contradict  any  provisions  of  the  will.  It 
went  to  explanations  independent  of  the  will,  respecting  a  state  of  facta 
about  which  it  was  silent.     It  was  therefore  admissible.3 

The  presumption  of  satisfaction  will  not  arise  where  the  debt  was  not 

1  Lee  v.  Paine,  4  Hare,  201,  where  the        2  Fowler  v.  Fowlet,  3  P.  "Wins.  353. 
doctrine  jf  cumulative  legacies  is  fully    "Williams  v.  Crary,  8  Cowen,  246. 
treated.  3  Id. 


Cli.  7.J  Satisfaction.  54^ 

contracted  till  after  the  making  of  the  will.1  Nor  will  it  be  tieated  as 
payment  pro  tanto,  if  it  be  less  in  amount  than  the  debt ;  nor  if  the  leg- 
acy be  upon  condition,  or  be  contingent  and  uncertain.2 

A  legacy,  to  be  a  satisfaction  of  a  debt,  must  be  given  by  the  same 
person  by  whom  the  debt  is  due  ;3  and  generally,  and  not  for  any  partic- 
ular or  specified  cause ;  it  must  be  of  the  same  nature,  equal  or  greater 
in  amount,  equally  beneficial  in  point  of  continuance  and  commencement, 
and  payable  at  a  period  as  advantageous  to  the  legatee  as  the  debt.4 

The  presumption  that  the  legacy  Avas  intended  as  a  satisfaction  of  the 
debt,  may  be  rebutted  by  other  circumstances  in  the  will :  thus,  where  a 
different  purpose  is  expressed  by  the  testator  as  the  motive  of  the  gift, 
or  where  there  is  an  express  direction  in  the  will  for  the  payment  of  all 
debts  and  legacies.5 

It  is  said  that  a  legacy  shall  in  all  cases  be  construed  as  a  satisfaction, 
in  case  there  is  a  deficiency  of  assets.6 

It  has  thus  been  shown  that  a  legacy  may,  under  certain  circumstances, 
be  a  satisfaction  of  a  debt.  It  may  be  proper  to  add,  that  a  legacy  may 
be  satisfied  by  an  advancement  of  the  testator,  in  his  lifetime,  either  on 
the  marriage  or  subsequent  to  the  marriage  of  a  legitimate  child.  The 
question  of  satisfaction  generally  comes  before  the  court  upon  two  occa- 
sions ;  1st,  where  a  portion  or  provision  is  secured  to  a  child  by  marriage 
settlement  or  otherwise,  and  the  parent  or  person  in  loco  parentis  after- 
wards by  will  gives  the  same  child  a  legacy,  without  expressly  directing 
it  to  be  in  satisfaction  of  the  portion ;  and  2d,  where  a  parent  or  person 
in  loco  parentis  by  will  bequeaths  a  legacy  to  a  child  or  grandchild,  and 
afterwards  gives  a  portion  to  or  makes  a  provision  for  that  child  or  grand- 
child in  liis  lifetime,  without  expressing  it  to  be  in  lieu  of  the  legacy; 
(tor  it  seems  that  an  express  declaration,  or  perhaps  evidence  of  the  in- 
tent, will  in  either  case  repel  the  general  presumption.)  With  respect  to 
the  first  point,  the  general  rule  is,  if  the  latter  provision  be  as  great  as, 
or  greater  than,  the  former  portion  or  provision,  then  it  is  a  complete  sat- 
isfaction; if  not  so  great,  then  a  satisfaction  pro  tanto.  But  this  rule 
only  applies  Avhere  the  subsequent  legacy  or  provision  is  attended  with 
the  same  degree  of  certainty  as  the  former  portion.  In  regard  to  the 
second  point,  the  rule  seems  to  be,  that  where  a  legacy  is  given  to  a  child 


1  Jetls  v.Wood,  2  P.  Wins.  132.    Thorn-  4  Eastwood  v.  Vincke,  2  P.  Wins.  61C. 

as  r.  Bennett,  id.  343.  Lee  v.  Brown,  4  Ves.  3G2. 

3  Cranmer's  case,  2  Salk.  508.   Nicholls  6  Chancey's  case,  1  P.  Wins.  409.   Bid* 

v.  Judson,  2  Atk.  300.  ardson  v.  Greese,  3  Atk.  65. 

3  OromptoD  v.  Sale,  2  P.  Wms.  555.  c  Toller,  337.    2  Will.  Ex.  808. 


541  Trusts.  ["Ch.  7. 

who  afterwards,  upon  marriage  or  otherwise,  receives  from  the  testator 
in  his  lifetime  the  like  or  a  greater  sum,  that  sum  shall  be  deemed  a  sat- 
isfaction of  the  legacy.1 

A  bequest  by  the  testator  to  his  debtor,  of  a  debt,  is  merely  a  release 
of  the  debt  by  will,  and  operates  only  as  a  legacy ;  and  is  assets  there- 
fore, subject  to  the  payment  of  the  testator's  debts.2  If  the  testator  in 
his  lifetime  receive  the  debt,  it  is  an  ademption  of  the  legacy.3 

Formerly  the  nomination  of  the  debtor  of  the  testator  as  executor,  op- 
erated as  a  release  or  extinguishment  of  the  debt.4  But  this  rule  is  now 
abrogated  by  the  Revised  Statutes,  and  the  debt  is  required  to  be  in- 
cluded among  the  credits  and  effects  of  the  deceased,  in  the  inventory, 
and  the  executor  is  liable  for  the  same,  as  for  so  much  money  in  his 
hands,  at  the  time  such  debt  or  demand  becomes  due ;  and  he  is  required 
to  apply  and  distribute  the  same  in  the  payment  of  debts  and  legacies, 
and  amongst  the  next  of  kin,  as  part  of  the  personal  estate  of  tho 
deceased.5 


SECTION  XI. 


OF    ELECTION. 


The  limits  of  this  treatise  will  not  permit  a  full  discussion  of  the 
doctrine  of  election,  and  nothing  further  will  be  attempted  than  to  give 
some  of  the  leading  principles  which  have  been  adjudged  by  the  courts 
on  this  subject. 

The  jurisdiction  exercised  by  courts  of  equity  in  compelling  election, 
was  thus  described  by  the  lord  chancellor  in  a  leading  case  :6  A  person 
shall  not  claim  an  interest  under  an  instrument,  without  giving  full  effect 
to  that  instrument,  as  far  as  he  can.  If,  therefore,  a  testator,  intending 
to  dispose  of  his  property,  and  making  all  his  arrangements  under  tha 
impression  that  he  has  the  power  to  dispose  of  all  that  is  the  subject  of 
his  will,  mixes  in  his  disposition  property  that  belongs  to  another  person 

1  Bellasis  v.  Uthwatt,  1  Atk.  427  and        c  Thellusson  v.  Woodforth,  13Ves.  219. 

note,  where  the  cases  are  collected.  Dillon  v.  Parker,  1  Swanst.  396,  note  of 

3  Rider  v.  Wager,  2  P.  Wins.  331.  Mr.  Swanston;  and  Hare  &Wailace's  note 
li.  S.  84,  §  14.  to  Streatfield  v.  Streatfield.     1  White's 

a  Id.  Equity  Cas.  258  et  seq.     Noys  v.  Mor- 

4  Co.  Litt.  264  b.  daunt,  2  Vern.  581* 
»2Pv.S.  84,  §13. 


Ch.  7.]  Election.  54o 

or  property  as  to  which  another  person  had  a  right  to  defeat  his  dispo- 
sition, giving  to  that  person  an  interest  by  his  will,  that  person  shall  not 
be  permitted  to  defeat  the  disposition,  when  it  is  in  his  power,  and  yet 
take  under  the  will.  The  reason  is,  the  implied  condition  that  he  shall 
not  take  both,  and  the  consequence  follows  that  there  must  be  an  elec- 
tion ;  for  though  the  mistake  of  the  testator  cannot  affect  the  property 
of  another  person,  yet  that  person  shall  not  take  the  testators  property 
unless  in  the  manner  intended  by  the  testator.1 

In  every  case  of  election  there  must  be  an  intention  to  dispose  of  that 
over  which  the  testator  has  no  power  of  disposition.2  The  intention  of 
the  testator  must  be  plain  and  manifest.3  The  property  intended  to  be 
>osed  of  must  be  described  with  certainty.4  And  the  intention  of  the 
testator  must  be  manifested  by  the  will,  for  it  seems  that  parol  evidence 
Is  inadmissible  for  the  purpose  of  showing  it.5 

The  doctrine  of  election  may  be  thus  illustrated :  Suppose  A.,  by  will 
or  deed,  gives  to  B.  property  belonging  to  C,  and  by  the  same  instru- 
ment gives  other  property  to  C,  a  court  of  equity  will  hold  C.  to  be 
entitled  to  the  gift  made  to  him  by  A.,  only  upon  the  implied  condition 
of  his  conforming  with  all  the  provisions  of  the  instrument,  by  renounc- 
ing the  right  to  his  own  property  in  favor  of  B. ;  he  must  consequently 
make  his  choses,  or,  as  it  is  technically  termed,  he  is  put  to  election  to 
take  either  under,  or  against  the  instrument.  If  C.  elects  to  take  under, 
and  consequently  to  conform  to  all  the  provisions  of  the  instrument,  no 
difficulty  arises,  as  B.  will  take  C.'s  property,  and  C  will  take  the 
property  given  to  him  by  A.  But  if  C.  elects  to  take  against  the  instru- 
ment, that  is  to  say,  retains  his  own  property,  and  at  the  same  time  sets 
up  a  claim  to  the  property  given  to  him  by  A.,  an  important  question 
arises  whether  he  thereupon  incurs  a  forfeiture  of  the  whole  of  the  bene- 
fit conferred  upon  him  by  the  instrument,  or,  is  merely  bound  to  make 
compensation  out  of  it  to  the  person  who  is  disappointed  by  his  election.' 

There  are  many  dicta  in  favor  of  the  doctrine  of  forfeiture.7  But  the 
weight  of  modern  authority  is  in  favor  of  the  principle  of  compensation.5 

1  Ilawley  v.  James,  16  Wend.  G2-142.      Ves.  194.     Wilson  v.  Townshenrt,  2  Yos. 
5  Thellusson  v.  Woodford,  13  Yes.  222.     jr.  697.     Thellusson  v.  Woodford,  18  Yes. 

5  RancliSfe  v.  Parkyns,  G  Dow,  170.         220. 

4  Dr.?ce  v.  Denison,  G  Ves.  899.  e  Whistler  v.  Webber,  2  Yes.  jr.  372. 

6  Stratum  v.  Best,  1  Ves.  jr.  284.  Ward  v.  Bangh,  4  Yes.  G27.     Lady  Cavan 
'  Note  to  Stieatfield  v.  Streatfield,  1     v.  Pulteney,  2   Yes.  jr.  5G0.     Blake   v. 

White's  Eq.  ('us.  258.  Banbury,  1  id.  523.     Welby  v.  Welby,  2 

7  Odwper  v.  Scott,  3  P.  Wme.  124.  Mor-  V.  &  B.  190,  191.  Webster  v.  Milford,  2 
ris  v.  Burroughs,  1  Atk.  404.  Prigh  v.  Eq.  Ca.  Abr.  3G3.  Bor  v.  Ror,  3  Bro.  i'. 
Smith,  2    id.    43.     Wilson    v.  Mount,  3  C,  Toml.  ed.  1G7.     Ardesoi£  v.  BiMiuet, 

Eo.  Jik.  69 


o46  Trusts.  [Oh.  7 

Lord  Eldon  in  Ker  v.  "Wane-hope,  (supra,)  says  :  "  In  our  courts  we  have 
engrafted  upon  this  primary  doctrine  of  election,  the  equity  as  it  is 
termed  of  compensation.  Suppose  a  testator  gives  his  estate  to  A.  and 
directs  that  the  estate  of  A.  or  any  part  of  it  should  be  given  to  B:  if 
the  devisee  will  not  comply  with  the  condition  of  the  will,  courts  of  equity 
hold  that  another  condition  is  to  be  implied  as  arising  out  of  the  will, 
and  the  conduct  of  the  devisee  ;  that  inasmuch  as  the  testator  meant  that 
his  heirs  at  law  should  not  take  his  estate  which  he  gives  A.  in  consider- 
ation of  his  giving  his  estate  to  B. ;  if  A  refuses  to  comply  with  the  will, 
B.  shall  be  compensated  by  taking  the  property,  or  the  value  of  the 
property,  which  the  testator  meant  for  him,  out  of  the  estate  devised, 
though  he  cannot  have  it  out  of  the  estate  intended  for  him." 

Mr.  Swanston,  after  reviewing  the  cases  in  his  learned  note  to  Gretton 
v.  Haward,  (1  Swanst.  433,)  shows  that  they  establish  two  propositions  : 
1st.  That  in  the  event  of  election  to  take  against  the  instrument,  courts 
of  equity  assume  jurisdiction  to  sequester  the  benefit  intended  for  the 
refractory  donee,  in  order  to  secure  compensation  to  those  whom  his  elec- 
tion disappoints.  2d.  That  the  surplus,  after  compensation,  does  not  \ 
devolve  as  undisposed  of,  but  is  restored  to  the  donee,  the  purpose  being 
satisfied  for  which  alone  the  court  controlled  his  legal  right. 

This  doctrine  of  election  applies  to  interests,  immediate,  remote,  con 
tingent,  of  value,  or  not  of  value.1  It  is  applicable  to  deeds  as  well  a> 
wills.  And  it  is  immaterial  whether  the  testator  or  grantor  knew  tin 
property  not  to  be  his  own  or  not ;  for  in  either  case,  if  the  intention  U 
dispose  of  it  clearly  appears,  his  disposition  will  be  sufficient  to  raise  a 
case  of  election.2 

The  doctrine  of  election,  in  this  state,  most  frequently  arises  in  rela- 
tion to  legacies  or  devises  by  the  testator  to  his  widow.  The  questions 
presented,  generally,  are  whether  the  testamentary  dispositions  in  her 
favor  were  intended  to  be  in  lieu  of  dower,  or  merely  a  bounty.  If  the 
legacy  be  in  express  terms  declared  to  be  in  lieu  of  dower,  the  widow,  it 
should  seem,  is  necessarily  put  to  her  election,  for  she  cannot  take  both. 
The  Revised  Statutes  have  made  full  provision  on  this  subject,  in  affirm- 
ance of  the  common  law ;  and  they  furthermore  enact,  that  she  shall  bo 
deemed  to  have  elected  her  jointure,  devise  or  pecuniary  provision,  unless 

2  Dick.  465.     Lewis  v.  King,  2  Bro.  C.  0.  '  Wilson  v.  Townshend,  2  Yes.  jr.  697 

600.     Freke   v.   Barrington,  3   id.   284.  Webb  v.  Earl  of  Shaftsbnry,  7  Ves.  4S0. 

Lord  Eldon  in  Dashwood  v.  Peyton,  18  2  Whistler  v.  Webster,  2  Ves.  jr.  370. 

Ves.  49.     Tibbits  v.   Tibbits,    Jac.  317.  Tbellnsson  v.  Woodford,    13   Yes.  221. 

Lord  Rancliffe  v.  Parkyns,  6  Dow,  170.  Welby  v.  Welby,  2  Yes.  &  B.  199. 
Ker  v.  Wanehope  1  Bligh,  25. 


Cb.  7.J  Election.  547 

within  one  year  after  the  death  of  her  husband,  she  shall  enter  on  the 
lands  to  be  assigned  to  her  for  her  dower,  or  commence  proceedings  for 
the  recovery  or  assignment  of  it.1 

But  it  is  in  cases  where  the  legacy  or  devise  is  not,  in  express  terms. 
declared  to  be  in  lieu  of  dower,  that  there  is  any  room  for  argument  or 
doubt.  As  the  right  of  dower  is  a  legal  right,  the  wife  cannot  be  deprived 
of  it  by  a  testamentary  provision  in  her  favor,  so  as  to  put  her  to  an  elec- 
tion, unless  the  testator  has  manifested  his  intention  to  deprive  her  of 
dower,  either  by  express  words  or  necessary  implication.2  And  to  enable 
us  to  deduce  such  implied  intention,  the  claim  of  dower  must  be  inconsist 
cut  with  the  will,  or  repugnant  to  its  dispositions,  or  some  of  them.  It 
must,  in  fact,  disturb  or  disappoint  the  will.3 

A  brief  examination  of  some  of  the  cases  will  best  illustrate  the  rules 
on  this  subject. 

In  Adsit  v.  Adsit,  (supra,)  the  testator  bequeathed  to  his  wife  .$500, 
u  to  be  left  in  the  hands  of  his  executors,  to  be  paid  to  her  for  her  sup- 
port, at  any  time,  or  at  all  times,  as  her  need  might  require ;"  and  also 
gave  her  what  household  goods  she  needed;  and  after  bequeathing  pe- 
cuniary legacies  to  his  grandchildren,  directed  his  farm  to  be  sold  by  his 
executors,  who  sold  it  for  $6000,  and  the  wife,  after  the  death  of  the  tes- 
tator, accepted  the  legacy,  which  was  paid  to  her  out  of  the  proceeds  of 
the  sale  of  the  farm.  It  was  held  by  Chancellor  Kent,  that  the  legacy 
was  not,  according  to  a  fair  construction  of  the  will,  given  in  lieu  of,  or 
in  bar  of  dower,  but  as  a  mere  pecuniary  bequest:  that  the  acceptance 
of  it  by  the  widow  did  not  affect  her  right  to  dower ;  and  that  the  pur- 
er of  the  farm  took  it  subject  to  the  claim  of  dower.  The  great  point 
in  the  case  was  whether  the  legacy,  which  purported  to  have  been  given 
fur  the  "  support"  of  the  widow,  afforded  clear  and  undoubted  evidence 
that  it  was  intended  as  a  substitute  for  dower.  Eveiy  devise  or  bequest, 
as  was  well  remarked,  imports  bounty,  and  does  not  naturally  imply  sat- 
isfaction of  a  pre-existing  incumbrance.  The  fact  that  it  fell  short  of  the 
Ugaj|  provision,  and  that  it  was  not  given  absolutely  out  and  out,  but  was 
left  in  the  hands  of  the  executors,  and  to  be  paid  to  her,  as  her  need 
might  require,  was  thought  to  afford  evidence  that  it  was  not  intended 
in  lieu  of  dower,  but  as  auxiliary  support.  The  chancellor  thought  it  was 
intended  as  a  gratuity,  or  as  a  cumulative  provision,  and  created  for 
greater  caution.     Of  course  the  acceptance  of  it  by  the  legatee  was  not 

'  1  R.  S.  711,  7i2,  §§  9  to  14.  v.  Lasher,  13  Barb.  10(5.     Smith  v.  Km., 

1  Fuller  v.  Yates,  8  Paige,  828.  kern,  i  J.  C.  R.  9. 

■  AoUit  v.  Adsit,  2  J.  Oh.  461.     Lasher 


548  Trusts.  jOi.  7 

inconsistent  with  her  claim  of  dower,  nor  was  the  assertion  of  her  claim 
to  dower  repugnant  to.  or  destructive  of  any  provision  in  the  will. 

In  general,  when  the  testamentary  provision  is  not  declared,  in  express 
terms,  to  be  in  lieu  of  dower,  if  it  be  of  shorter  continuance  than  an 
estate  in  dower,  or  be  charged  with  a  burden,  the  court  will  not  imply 
that  it  was  intended  to  be  a  substitute  for  doAver. 

In  Bull  v.  Church,1  the  testator  bequeathed  to  his  wife  "  all  his  prop- 
erty, real  and  personal,  during  her  natural  life,  or  as  long  as  she  shall 
remain  my  widow.  After  my  beloved  wife's  decease,  or  if  she  should 
marry  again,  I  will  and  order  my  property  to  be  divided  in  the  following 
manner."  The  widow  continued  in  possession  for  some  years,  and  then 
married,  and  in  an  action  brought  by  her  for  her  dower,  after  such  mar- 
riage, the  question  was,  whether  the  legacy  was  a  bar  to  dower.  The 
supreme  court  held  that  it  was  not,  and  their  judgment  was  affirmed  by 
the  court  of  errors. 

The  estate  given  to  the  wife  in  this  case  would  have  been  greater  than 
her  dower,  had  she  remained  a  widow  during  life,  and  in  that  case  the 
question  could  not  have  arisen.  It  was,  however,  a  less  estate  than  brr 
dower,  because  it  terminated  at  her  marriage.  It  was  not  expressed  w 
be  in  lieu  of  dower.  A  testamentary  provision  for  the  wife  is  deemed  a 
gratuity  or  benevolence,  which  she  may  take  in  addition  to  her  dower, 
unless  the  testator  has  plainly  manifested  a  different  intention,  as  by  say- 
ing that  the  gift  is  in  lieu  or  bar  of  dower.  Her  claim  to  dower,  said 
Bronson,  J.,  is  no  more  inconsistent  with  the  will  than  it  would  be  in  any 
other  case,  where,  after  making  a  provision  for  the  wife,  the  testator  has 
given  lands  to  another,  without  saying  any  thing  about  dower,  and  in 
such  a  case  the  widow  shall  have  dower,  in  addition  to  the  provision  made 
by  the  will.2  And  the  chancellor,  in  giving  the  opinion  of  the  court  of 
errors,  in  the  same  case,  gives  it  as  the  result  of  all  the  cases,  in  this 
state  and  in  England,  that  to  compel  the  widow  to  elect  between  the  dower 
and  a  provision  made  for  her  in  the  will,  when  the  testator  has  not  in 
terms  declared  his  intention  on  the  subject,  it  is  not  sufficient  that  the 
will  renders  it  doubtful  whether  he  intended  that  she  should  have  her 
dower,  in  addition  to  that  provision ;  but  that  to  deprive  her  of  dower, 
the  terms  and  provisions  of  his  will  must  be  totally  inconsistent  with  her 
claim  of  dower  in  the  property  in  which  such  dower  is  claimed;  so  tnat 

1  5  Hill,  206  ;  S.  C,  2  Denio,  430.  a  Allen  v.  Pray,  3  Fairf.  138.    Keed  v, 

Dickerman,  12  Pick.  146. 


Cl   T.j  Election.  549 

the  intention  of  the  testator  in  relation  to  some  part  of  t^e  property  de- 
vised to  others  would  be  defeated  if  such  claim  was  allowed.1 

The  doctrine  of  the  New-York  cases  is  not  different  in  this  respecc 
from  that  in  the  most  recent  English  cases.  Vice  Chancellor  Wigram, 
in  a  resent  case,2  says,  "  I  take  the  law  to  be  clearly  settled  at  this  day, 
that  a  devise  of  lands  eo  nomine  upon  trusts  for  sale,  or  a  devise  of  lands 
co  nomine  to  a  devisee  beneficially,  does  not,  per  se,  express  an  intention 
to  devise  the  lands  otherwise  than  subject  to  its  legal  incidents;  that  of 
dower  included.  There  must  be  something  more  in  the  will,  something 
inconsistent  with  the  enjoyment  by  the  widow  of  her  dower,  by  metes 
and  bounds,  or  the  devise  standing  alone  will  be  construed  as  I  have 
stated."  And  this  doctrine  was  approved  by  the  chancellor  in  Church 
v.  Bull. 

In  Lasher  v.  Lasher,3  the  question  arose  in  an  action  by  the  widow  for 
her  legacy,  after  she  had  had  her  dower,  set  off  to  her.  The  testator  de- 
vised to  the  defendant  100  acres  of  his  home  lot  and  15  acres  of  wood- 
land in  fee,  charged  with  the  payment  of  a  small  legacy  to  each  of  hi3 
three  sisters,  and  the  will  then  proceeded  thus  :  "  I  also  will  and  order 
that  my  said  wife  be  well  and  sufficiently  supported  and  maintained  by 
my  son  Elias  out  of  the  property  bequeathed  to  him,  so  long  as  she  may 
remain  my  widow."  The  widow  having  had  her  dower  assigned  to  her, 
brought  her  action  against  the  devisee  upon  whom  her  support,  during 
widowhood,  was  charged,  and  a  recovery  was  resisted  upon  the  ground 
that  by  accepting  her  dower,  she  had  relinquished  her  claim  to  the  sup- 
port provided  for  in  the  will.  But  the  court  held,  that  as  the  testamen- 
tary disposition  in  her  favor  was  not  expressed  to  be  in  lieu  of  dower, 
and  the  provisions  of  the  will  were  not  inconsistent  with  her  claim,  she 
was  not  put  to  her  election. 

In  the  above  case  the  testamentary  provision  in  favor  of  the  widow  was 
of  shorter  continuance  than  her  dower,  being  limited  to  her  widowhood; 
and  was  also  charged  with  a  burden,  viz.  the  furnishing  a  home  with  her 
to  two  of  her  daughters  while  they  remained  single.  In  the  absence  of 
any  express  declaration  that  such  a  legacy  shall  be  in  lieu  of  dower,  the 
law  will  not  imply  it.  The  whole  provision  would  terminate  by  the  mar- 
riage of  the  legatee,  and  might  be  exhausted  by  the  burden  cast  upon  it. 

Nor  will  the  law  imply  that  a  legacy  to  the  widow  is  in  lieu  of  dower. 
because  the  testator  by  the  same  will  devises  his  real  estate  to  trustees  for 
specified  purposes,  or  to  a  devisee  beneficially.     There  must  be  something 

'  Church  v.  Bull,  2  Denio,  401.  3  13  Barb.  100. 

1  Ellis  v.  Lewis.  :j  Hare,  310,  313. 


550  Trusts.  LCh.  7 

more  to  indicate  that  purpose,  or  the  devise  must  he  inconsistent  with  the 
claim  of  dower.1 

In  Fuller  v.  Yates,  (supra,)  the  testator  devised  all  his  real  and  per- 
ianal estate  to  his  executors  and  trustees,  with  directions  to  thurn  to  lay 
out  certain  portions  of  his  lands  into  village  lots,  and  to  sell  them  fron 
time  to  time  as  they  might  be  wanted  for  building  lots,  and  with  power 
to  sell  any  other  parts  of  the  estate  they  might  deem  necessary  to  fulfill 
the  objects  of  his  will,  and  gave  to  his  widow  the  possession  and  direction 
;>f  his  dwelling  house  and  Walnut  Grove  farm,  and  an  annuity  of  $2000, 
ind  a  further  annuity  of  $500  to  keep  up  the  garden  and  improve  thr 
property,  and  also  the  use  of  his  library  and  certain  pleasure  carriages, 
horses,  &c. ;  it  was  held  by  the  chancellor  that  the  widow  was  entitled 
to  dower  in  the  testator's  real  estate,  in  addition  to  the  devises  and  be- 
quests in  her  favor  in  the  will. 

Though  in  this  case,  taking  the  whole  disposition  into  consideration,  it 
could  hardly  be  said  that  the  testator  intended  that  his  wife  should  have 
her  dower,  in  addition  to  the  testamentary  dispositions  in  her  favor ;  and 
probably  if  the  question  of  dower  had  occurred  to  him,  he  would  have  in- 
serted a  provision  in  the  will  declaring  the  dispositions  in  her  favor  to  be 
in  lieu  of  dower  in  the  residue  of  his  estate  ;  yet,  it  was  well  observed  by 
the  chancellor  that  it  was  not  sufficient  to  bar  dower,  that  the  testator 
did  not  think  on  the  subject ;  as  that  would  only  indicate  a  want  of  in- 
tention either  one  way  or  the  other.  To  exclude  the  widow's  right  to 
dower,  the  will  itself  must  show  that  he  probably  did  contemplate  the 
subject,  and  intended  that  the  testamentary  provision  for  the  wife  should 
exclude  her  from  all  claim  to  dower,  if  she  elected  to  take  them.2 

So  a  devise  of  all  the  testator's  real  and  personal  estate  to  a  trustee, 
to  be  sold  and  converted  into  money,  and  to  pay  the  widow  an  annuity 
out  of  the  income  of  the  mixed  fund,  composed  of  the  proceeds  of  the  real 
and  personal  property,  is  not  of  itself  sufficient  to  sIioav  that  the  testator 
intended  this  provision  for  the  widow  to  be  in  lieu  of  dower,  so  as  to  com- 
pel her  to  elect  between  such  annuity  and  her  dower  in  the  real  estate.3 

Nor  is  it  enough  to  deprive  the  wife  of  her  dower,  or  to  compel  her  to 
•lect,  that  the  provisions  of  the  will  render  it  doubtful  whether  the  tes 
tator  intended  she  should  have  her  dower,  in  addition  to  the  provision 
made  for  her  by  the  will.  The  terms  and  provisions  of  the  will  must  be 
such  as   to  show  an  evident  intention,  on  the  part  of  the  testator,  to 

1  Ellis  v.  Lewis,  3  Hare,  310.  Adsit  v.  a  Fuller  v.  Yates,  8  Paige,  331. 
Adsit,  2  J.  Ch.  K.  451.  Fuller  v  Yates,  3  Wood  v.  "Wood,  5  Paige,  596, 
8  Paige,  325. 


Cb.  7. J  Election.  551 

exclude  the  claim  of  dower.  The  provisions  of  the  will,  or  some  cf  thein 
must  be  absolutely  inconsistent  with  her  claim  of  dower.1 

Thus,  where  a  testator  devised  all  his  property,  real  and  peisonal,  to 
his  wife  and  to  two  other  persons,  to  be  kept  for  her  use  and  support  so 
long  as  she  should  continue  his  widow,  and  until  his  youngest  child  should 
become  of  age,  and  then  directed  that  all  his  property  should  be  divided 
equally  among  his  children ;  and  she  survived  the  testator,  and  after- 
wards married  a  second  time,  it  was  held  that  the  devise  in  her  favor  was 
not  inconsistent  with  her  claim  of  dower  in  the  testator's  real  estate, 
after  his  youngest  child  arrived  at  the  age  of  twenty-one,  and  that  her 
acceptance  of  the  devise  was  no  bar  to  such  claim  of  dower.2 

When  the  whole  of  the  property  is  conveyed  by  one  general  devise,  if 
there  be  one  part  of  the  property,  with  respect  to  which  it  is  clear  that 
the  testator  did  not  intend  that  it  should  be  subject  to  the  claim  of 
dower,  it  follows  that  he  did  not  intend  that  any  portion  of  it  should  be 
subject  to  dower:  and  in  such  case  the  wife  is  necessarily  put  to  her 
election.3  But  whether  a  mere  charge  of  an  annuity  upon  the  land  in 
favor  of  a  widow  with  a  clause  of  entry  and  distress,  would  be  sufficient 
to  put  her  to  her  election,  has,  in  England,  given  rise  to  a  contrariety  of 
decisions,  and  was  left  undecided  in  Roadley  v.  Dixon.4  If  the  annuity 
be  chargeable  on  both  real  and  personal  property  of  the  estate,  and  be 
not  confined  to  the  land  alone  out  of  which  dower  is  claimed,  the  cases 
in  this  state  show  that  the  wife  is  not  put  to  her  election,  but  that  she 
takes  the  legacy  as  a  bounty  and  her  dower  also.5 

Although  the  doctrine  of  election  we  are  considering  is  in  truth  a  part 
of  equity  jurisprudence,  and  it  is  in  courts  of  equity  that  relief  is  in 
general  sought,  yet  the  principles  on  which  the  court  acts  are  in  all 
respects  the  same  at  law  as  in  equity,  when  the  issue  is  so  shaped  as  1 1 
require  their  application.6  In  an  early  case,  Thompson,  J.,  said,  that  to 
render  a  provision  to  the  wife  by  will  a  legal  bar  to  dower,  it  must  con- 
sist of  lands  given  or  assured  unto  her  for  life  ;  but  such  a  sum  of  money, 
or  other  chattel  interest,  given  by  will  in  lieu  of  dower,  will,  if  accepted 

1  Saiiford  v.  Jackson,  10  Paige,  269.  shall  not  attempt  to  reconcile  the  cases  in 

1  Id.  266.  the  other  states.     They  are  ably  review- 

5  Roadley  v.  Dixon,  3  Russ.  193.    Midi  ed  in  the  note,  in  White's  Equity  Cases, 

v.  Brain,  4  Mad.  Ch.  R.  68.     Butcher  v.  to  Streatfield  v.  Streatfield,  vol.  1,  272- 

Kenij),  5  id.  61.  289,  to  which  the  reader  is  referred. 
4  3  Russ.  206,  and  see  the  eases  reviewed        c  Van  Orden  v.  Van  Orden.  10  J.  R. 

in   that   cause,   and  White's   Eq.  Cases,  30.     Jackson  v.  Churchill,  7  Cowen,  287. 

note,  284,  285.  Bull  v.  Church,  7  Ilill,   287;    S.  C,  2 

*  Smith  y.  Kniskern   4J  Cli.  R.  9.    I  Denio,  430. 


552  Trusts.  [Ch.  7 

by  tLe  wife,  after  her  husband's  death,  constitute  an  equitable  bar  of 
her  dower.1  But  this  distinction  is  abrogated  by  the  Revised  Statutes, 
which  enact  that  if  lands  be  devised  to  a  woman,  or  a  pecuniary  or  other 
provision  be  made  for  her  by  will,  in  lieu  of  dower,  she  shall  make  her 
election,  whether  she  will  take  the  lands  so  devised,  or  the  provision  so 
made,  or  whether  she  will  be  endowed  of  the  lands  of  her  husband.2  And 
the  statute,  furthermore,  deems  her  to  have  elected  the  testamentary 
provision,  unless  within  a  year  after  the  death  of  her  husband,  she  shall 
enter  on  the  lands  to  be  assigned  to  her  for  her  dower,  or  commence  pro 
ceedings  for  the  recovery  or  assignment  thereof.3  And  Savage,  Ch.  J.. 
in  one  case  said,  that  though  the  provision  by  will  was  called  an  equitable 
bar  to  dower,  he  apprehended  it  was  also  a  legal  bar.4  It  clearly  is  so 
since  the  statute,  whatever  was  the  rule  before. 

A  bequest  in  lieu  of  dower,  and  the  acceptance  of  the  same,  amounts 
to  a  matter  of  contract,  and  the  wife  is  to  be  paid  the  bequest  in  prefer- 
ence to  other  legacies,  and  without  abatement.5  To  protect  such  legacy, 
when  accepted,  if  there  be  a  deficiency  of  assets  to  pay  debts,  the  real 
estate  may  be  resorted  to  in  exoneration  of  what  is  specifically  bequeath 
ed  to  the  widow.6 

If  an  annuity  and  a  devise  and  bequest  be  given  to  the  widow  in  lieu  of 
dower,  and  the  annuity  fail,  because  the  fund  out  of  which  it  was  made 
payable  was  illegally  created,  she  still  has  the  right,  if  she  sees  fit,  to 
accept  of  a  part  of  what  was  intended  by  the  testator  as  an  equivalent  for 
her  dower,  and  to  relinquish  her  dower  for  that  consideration  alone. 
Even  in  such  a  case,  if  she  has  precluded  herself  from  claiming  dower, 
by  receiving  the  annuity  given  her  by  the  will,  in  lieu  of  dower,  and  by 
neglecting  to  commence  proceedings  for  the  recovery  thereof  within  a 
year  from  the  death  of  her  husband,  she  is  not  bound,  in  equity,  by  that 
election,  except  as  against  bona  fide  purchasers  or  mortgagees,  but  may 
nevertheless  assert  her  claim  to  dower.7 

1  Larabee  v.  Van  Alstyne,  1  J.  R.  308.        5  Isenhart  v.  Brown,  1  Edw.  411.    Bur- 

Tones  v.  Powell,  6  J.  Ch.  R.  194.  ridge  v.  Bradyl,  1  P.  Wins.  127.    Heath 

!  1  R.  S.  741,  §  13.  v.  Dendy,  1  Russ.  543. 
8  Id.  §  14.  6  Isenhart  v.  Brown,  supra. 

4  Kennedy  v.  Mills,  13  Wend.  553.  • 7  Hone  v.  Van  Schaick,  7  Paige,  23£. 


Ch.  7.!  Donatio  Mortis  Causa.  W3 


SECTION  XII. 

of  doxatio  moktis  causa. 

In  bringing  tins  branch  of  the  subject  to  a  close,  it  will  be  proper  to 
notice  the  subject  of  donatio  mortis  causa.  This  species  of  gift  is  not,  in 
strictness,  a  legacy,  but  is  in  the  nature  of  a  legacy ;  and  although  it  is 
cognizable  in  many  instances  in  courts  of  law,  it  is  mainly  in  courts  of 
equity  that  questions  with  respect  to  it  are  raised  and  discussed,  and  it 
belongs,  therefore,  appropriately  to  equity  jurisprudence. 

A  donatio  mortis  causa  is  a  gift  made  by  a  person  during  his  last  ill- 
ness, or  in  peril  of  death,  which  is  perfected  by  an  actual  delivery,  but 
which  is  revocable  during  the  donor's  life,  and  is  only  intended  to  be 
absolute  in  case  of  the  donee's  surviving.1  This  definition  contemplates 
an  actual  delivery  of  the  subject  of  the  gift,  which  was  not  in  terms 
required  by  the  Roman  law.  The  donatio  mortis  causa  is  thus  dofined 
iu  the  civil  law  :  "  Mortis  causa  donatio  est,  qua.  propter  mortis  jit 
mspicionem  ;  cum  quis  ita  donat,  ut,  si  quid  humanitus  ei  contigisset, 
haberet  is,  qui  accipit :  sin  autem  supervixisset  is,  qui  donavit,  red- 
jcrct :  vel  si  eum  donationis  posnituisset,  aut  prior  decesserit  is.  cut 
donatum  sit."2  In  the  civil  law  this  gift  was  considered  more  in  the 
nature  of  a  legacy  than  with  us. 

There  are  three  principal  circumstances  essential  to  constitute  this 
species  of  gift  by  our  law,  viz.  1.  The  gift  must  be  made  with  a  view  to 
the  donor's  death ;  2.  It  must  be  conditioned  to  take  effect  on  the  death 
of  the  donor,  by  his  existing  disorder ;  and  3.  It  must  be  accompanied 
with  an  actual,  or  at  least  a  symbolical  delivery  of  the  subject  of  the  gift.3 
A  few  remarks  will  be  made  upon  these  several  requisites. 

(1.)  The  gift  must  be  made  with  a  view  to  the  donor's  death.  Gifts 
of  this  kind,  said  Sir  Joseph  Jekyl,  master  of  the  rolls,  on  one  occasion, 

1  Tate  v.  ITjlbert,  2  Ves.  jr.  111.  Craig  that  if  the  donor  dies,  the  donee  shallpos 
v.  Craig,  3  Barb.  Ch.  R.  117.  Bac.  Abr.  sess  it  absolutely;  or  return  it,  if  the  do- 
tit.  Leg.  A.  Harris  v.  Clark,  2  Barb.  S.  nor  should  survive;  or  should  repent  of 
0.  R.  'JO ;  S.  C.  on  appeal,  3  Comst.  114.  having  made  the  gift;  or  if  the  donee 

a  Institute,  lib.  2,  tit.  7.  and  may  ba  should  die  before  the  donor." 

thns  rendered:  "  A  donation  mortis  causa  3  Harris  v.  Clark,  2  Barb.  S.  C.  R.  96. 

')<  made  under  apprehension  of  death  ;  as  3  Comst.  114.    Parish  v.  Stone,  14  Pick. 

where  any  thing  i-  given  upon  condition,  203,  204. 
•    Ey    Jill.                                           70 


554  Trust.".  [Ch.  7. 

are  not  good,  unless  made  by  the* party  in  liis  last  sickness.'  If  the  gift 
be  made  in  the  donor's  last  sickness,  and  especially  if  so  made  not  long 
before  his  death,  it  will  be  implied  that  it  was  made  with  reference  to  his 
death.  But  if  a  gift  be  made  under  no  present  peril  of  death,  but  under 
the  consideration  of  man's  mortality  in  general,  or  if  it  be  given  with  an 
intention  that  it  should  take  effect  immediately,  and  be  irrevocable,  it  may 
be  a  good  gift  inter  vivos,  but  is  not  a  donatio  mortis  causa.2 

(2.)  It  must  be  conditioned  to  take  effect  only  on  the  death  of  the  do- 
nor, by  his  then  existing  illness.  This  condition,  it  seems,  need  not  be 
declared,  but  will  be  presumed,  if  the  contrary  be  not  expressed,  provided 
the  donor  die  of  the  then  present  indisposition.3  Thus,  in  Gardner  v. 
Parker,  (supra.)  the  testator  being  dangerously  ill  and  confined  to  his  bed, 
two  days  before  his  death,  in  the  presence  of  a  servant,  gave  the  plaintiff 
a  bond  for  £1800,  saying  at  the  time,  "  There,  take  that  and  keep  it" 
the  question  arose  between  the  plaintiff  claiming  the  bond  as  a  donatio 
mortis  causa,  and  the  defendants,  who  were  the  executors  of  the  donor, 
and  the  objection  was  that  the  gift  was  not,  at  the  time,  declared  to  be 
in  contemplation  of  immediate  death.  Sir  John  Leach,  vice  chancellor, 
said,  "  the  doubt  here  is,  that  the  donor  has  not  expressed  that  the  bond 
was  to  be  returned  to  him  if  he  recovered.  This  bond  was  given  in  the 
extremity  of  sickness,  and  in  contemplation  of  death  ;  and  it  is  to  be  infer- 
red, that  it  was  the  intention  of  the  donor  that  it  should  be  held  as  a  gift 
only  in  case  of  his  death.  If  a  gift  is  made  in  expectation  of  death,  there 
is  an  implied  condition  that  it  is  to  be  held  only  in  the  event  of  the  death." 

(3.)  There  must  be  a  delivery  of  the  subject  of  the  gift.  Delivery  is 
essential  to  a  gift  in  all  cases,  whether  made  to  take  effect  immediately, 
or  intended  merely  as  a  donatio  mortis  causa.* 

There  are  cases  where  an  actual  delivery  is  impracticable,  and  where 
a  symbolical  delivery  is  the  tisual  mode  of  transferring  the  title.  Thus, 
the  delivery  of  the  key  of  a  warehouse,  or  other  place,  in  which  bulky 
goods  are  deposited,  has  been  determined  to  be  a  valid  delivery  of  the 
goods,  fur  the  purpose  of  a  donatio  mortis  causa.5 

1  Miller  v.  Miller,  3  P.  Wms.  357.  Tate  Ves.  jr.  120.     Harris  v.  Clark,  3  Coinst. 

v.  Hilbert,   2  Ves.  jr.  120.     Lawson  v.  114. 

Lawson,    1    P.   Wms.   441.     Gardner  v.  *  Harris  v.  Clark,  3  Comst.  113.  Noble 

Parker,  3  Mad.  Ch.  R.   184.     Harris  v.  v.  Smith,  2  J.  P.  56.     Irons  v.  Smallpiece, 

Clark,  2  Barb.  S.  C.  P.  96.  2  Barn.  &  Aid.  553.     Drury  v.  Smith,  1 

s  See  the  same  cases.  P.  "Wms.  404.     Craig  v.  Craig,  3  Barb. 

3  Gardner  v.  Parker,  3  Mad.  Ch.  R.  184.  Ch.  R.  76. 

Irons  v.  Smallpiece,  2  Barn.  &  Aid.  553,  5  Smith  v.  Smith,  2  Str.  955.     "Ward  v. 

per  Abbott,  Ch.  J.     Tate  v.  Hilbert.  2  Turner,  2  Ves.  sen.  443.    Wilkes  v.  Fer 

ris.  5  J.  R.  335. 


Oli.  7.]  Donatio  Mortis  Causa.  555 

A  debt  due  may  be  discharged  by  a  donatio  mortis  causa,  by  destroy- 
in  f  the  bond  or  other  evidence  of  debt.1  The  destruction  of  the  evidence 
of  debt,  with  an  intention  of  discharging  the  debt,  is  equivalent  to  an 
actual  delivery. 

"With  regard  to  the  kind  of  property  which  may  be  the  subject  of  a 
donatio  mortis  causa,  it  should  seem  that  any  chattel  which  passes  by 
delivery,  may  be  the  subject  of  such  gift.  Hence,  a  bond,  or  a  bond  and 
mortgage,  and  all  negotiable  instruments  which  pass  merely  by  delivery, 
fall  within  the  rule.2  And  a  delivery  to  a  third  party,  for  the  benefit  of 
the  donee,  is  sufficient.3 

But  where  no  title  passes  by  mere  delivery,  there  can  be  no  valid  gift. 
Hence  the  executory  promise  of  a  person,  without  a  consideration  to  sup- 
port it,  cannot  be  made  the  subject  of  a  donatio  mortis  causa.  Thus,  a 
promissory  note  by  the  donor,  payable  to  the  intended  donee,  or  a  draft 
in  his  favor,  are  not  available  as  such  gift  within  the  rule.4  Neither  a 
promissory  note,  or  any  other  executory  contract  for  the  payment  of 
money  or  delivery  of  a  chattel,  can  be  enforced  between  the  original 
parties,  unless  made  upon  a  valuable  consideration.5  The  payee  in  such 
an  instrument  stands  in  no  better  plight,  after  the  death  of  the  maker, 
than  during  his  life  ;  and  if  he  could  not  enforce  it  against  the  original 
party  while  living,  much  less  can  he  enforce  it  against  his  executors  or 
administrators  after  his  death. 

From  what  has  already  been  said,  it  is  obvious  that  a  donatio  mortis 
Causa  in  some  respects  resembles  a  legacy,  and  in  other  respects  resem- 
bles a  gift  inter  vivos  ;  and  that  it  is  distinguishable  from  both  in  several 
respects.  It  differs  from  a  legacy  in  not  requiring  the  assent  of  the 
executor,  or  the  proof  of  it  in  the  surrogate's  court.  As  the  gift  takes 
effect  from  the  delivery,  the  title  to  it  is  derived  directly  from  the  donor, 

1  Gardner  v.  Gardner,  22  Wend.  526.  lick,  10  Conn.  485.     6  K  II.  386.     2  Gill 

1  Ooutant  v.  Schuyler,  1   Paige,    S16.  &  John.  217.     Holly  v.  Adams,  16  VS. 

Duffield   v.   Elwes,   I  Bligh,  N.  S.  497.  206,    overruling    Wright   v.    Wright,    1 

Grover  v.  Grover,  24  Pick.  261.     Snell-  Cowen,  598.     NT.  B.  Wright  v.  Wright 

grove  v.  Bailey,  3  Atk.  214.     Gardner  v.  was  probably  erroneously  reported.     It 

Parker,  8  Mad.  Ch.  R.   184.     Harris  v.  was  never  followed  in  this  state,  and  was 

Clark,  2  Barb.  S.  C.  R.  98;  S.  C,  3  Comst.  overruled  at  the  first  opportunity. 

93.  5  Pearson  v.  Pearson,  7  J.  R.  26.     Fink 

8  Coutant  v.  Schuyler,  1  Paige,  316.  v.  Cox,  18  J.  R.  145.     Ilolliday  v.  Atkin- 

4  Harris  v.  Clark,  2  Barb.  S.  C.  R.  94;  son,  5   Barn.  &   Cress.  501.     Harris   v. 

S.  C.  affirmed  on  appeal,  3  Comst.  93.  Clark,  3  Comst.  113.     Parish  v.  Stone,  14 

Qfcftfg  v.  Craig,  3  Barb.  Ch.  R.  116.    Parish  Pick.  205,  206. 
r.  Stone,  14  Pick.  199.     Raymond  v.  Sel- 


556  Trosi^.  [Ch.  7, 

and  not  from  the  executor  or  administrator  of  the  donor.  Indeed,  it  :s 
usually  claimed  in  hostility  to  the  latter.1 

A  donatio  mortis  causa  differs  from  a  gift  inter  vivos,  in  that  it  is 
revocable  during  the  life  of  the  donor,  and  may  be  made  to  the  wife  of 
the  donor.2  It  is  liable  also,  on  a  deficiency  of  assets,  to  the  debts  of 
the  testator.3     In  all  these  respects  it  resembles  a  legacy. 

It  follows,  too,  from  what  has  been  said,  that  the  gift  is  revoked,  by 
che  recovery  of  the  donor  fron  the  illness  under  which  he  was  suffering 
when  the  gift  was  made.4 


SECTION  XIII. 

OF    ABATEMENT    OF   LEGACIES;     AXD    THE    PERSON    TO    WHOM    PAYABLE. 

In  considering  the  general  subject  of  legacies,  and  of  a  donatio  mortis 
causa,  it  has  been  assumed  that  there  has  been  no  deficiency  of  assets 
to  satisfy  the  debts  of  the  testator.  But  as  every  man  must  be  just 
before  he  is  generous,  the  laws  of  the  land  as  well  as  the  principles  of 
natural  justice  require  that  the  payment  of  the  debts  of  the  deceased 
should  have  preference  over  such  claims  as  rest  only  upon  the  testator's 
bounty.  If  the  testator's  property  is  exhausted  in  the  payment  of  debts, 
all  the  legacies  must  fail.  If  there  be  enough  property  to  satisfy  the 
debts  and  to  pay  the  legacies  in  part,  another  question  arises  in  which 
the  aid  of  a  court  of  equity  is  necessary,  with  respect  to  the  principles 
on  which  an  abatement  shall  be  made  among  the  several  legatees. 

General  legacies,  unless  there  be  an  indication  in  the  will  of  a  contrary 
intention,  abate  ratably  in  case  of  a  deficiency  of  assets  ;  but  legacies 
for  the  erection  of  suitable  head  stones  at  the  graves  of  the  testator's 
relatives,  and  legacies  founded  upon  a  prior  indebtedness,  or  a  valuable 


1  Miller  v.  Miller,  3  P.  Wins.  356.  Duf-  subject  of  donatio  mortis  causa.  The 
field  v.  Elwes,  1  Sim.  &  Stu.  245,  per  the  attention  of  the  reader  is  invited  to 
V.  Ch.  the  case   of  Headly    v.   Kirhy,  decided 

2  Lawson  v.  Lawson,  1  P.  Wins.  441.  in  May,  1852,  by  the  supreme  court  of 

3  Drury  v.  Smith,  1  P.  "Wins.  406.  Pennsylvania,  and  reported  in  the  Ameri- 
*  Hedges  v.  Hedges,  Prec.  in  Ch.  209.  can  Law  Register,  vol.  1,  No.  1,  and  to 

2  Vern.  615.  an  article  on  tbe  same  subject,  by  the 

The  limits  of  this  treatise  will  i,ot  per-  learned  editor,  in  the  same  volume,  p.  1. 
mit  a   more  enlarged  discussion  of  tbe 


Ch.  7.J  Abatement  of  Legacies.  551 

consideration,  do  not  so  abate,  but  must  be  paid  in  full,  though  the  assets 
are  not  sufficient  to  pay  all  the  general  legacies.1  So  a  legacy  in  lieu  of 
dower  does  not  abate  ratably  with  other  general  legacies.2  In  general 
speaking,  there  is  no  abatement  in  the  case  of  specific  legacies  ;  the  spe- 
cific legacies  being  preferred,  in  this  respect,  to  general  legacies,  but  both 
must  yield  to  the  claim  of  creditors.3  The  principles  of  the  decisions  of 
the  courts  of  equity  on  this  subject  are  in  substance  adopted  by  the 
Revised  Statutes  of  New-York,  which  require,  first,  the  payment  of  the 
debts  of  the  testator,  and  next,  the  discharge  of  the  specific  legacies 
bequeathed  in  the  will,  and  then  the  payment  of  the  general  legacies,  if 
there  be  assets ;  and  if  there  be  not  sufficient  assets,  then  an  abatement 
of  the  general  legacies  shall  be  made  in  equal  proportions.4  A  residuary 
legatee  has  no  right  to  call  upon  particular  general  legatees  to  abate. 
The  whole  personal  estate  not  specifically  bequeathed  must  be  exhausted, 
before  those  legatees  can  be  obliged  to  contribute  any  thing  out  of  their 
bequest.5  In  our  law,  particular  general  legatees  are  preferred  before 
the  residuary  legatees,  (though  it  was  otherwise  in  the  Roman  law,)  the 
residuum  being  by  us  considered  as  the  gleanings  of  the  testator's 
estate.6 

There  is  a  distinction,  of  some  importance,  running  through  the  cases, 
behveen  an  original  deficiency  of  assets,  and  where  the  assets  were  suf- 
ficient, but  have  been  wasted  by  the  executor.  In  the  former  case,  a 
legatee  who  has  been  paid  nore  than  his  proportion,  under  the  deficiency, 
must  refund ;  but  in  the  latter  case,  he  is  not  obliged  to,  for  he  has 
received  no  more  than  what  was  due  to  him,  and  the  other  legatees  must 
look  to  the  executor.  The  legatee  who  has  been  paid  shall  retain  the 
advantage  of  his  legal  diligence.7 

A  legacy,  general  in  its  nature,  though  directed  to  be  applied  to  a 
particular  purpose,  other  than  the  payment  of  debts,  or  the  removal  of  a 
charge  on  the  estate,  is  not  entitled  to  any  exemption  from  abatement. 
Thus,  a  legacy  to  an  executor  for  care  and  trouble,  and  a  legacy  to  ehari- 
ties,  have  no  preference  over  other  general  legacies.8 

"With  regard  to  demonstrative  legacies,  being  bequests  with  reference 

1  "Wood  v.  Vandenburgh,  6  Paige,  177.  James  v.  James,  4  id.  115.     Bowers  v. 

Masters  v.  Masters,  1  P.  Wins.  423.  Smith,  10  id.  193. 

7  Williamson  v.  "Williamson,  6  Paige,  7  Lupton  v.  Lupton,  2  J.  Ch.  R.  G20 

298.  1   p.  Wins.   495,  per  Sir  Joseph  Jekyl 

s  Clifton  v.  Burt,  1  P.  Wins.  G80.  Wolcott  v.  Hall,  2  Bro.  305. 

4  2  K.  S.  87-90,  §§  27,  45.  8  Fretwell  v.  Stacy,  2  Vern.  434.    Mor- 

1  Parse  v.  Snaplin,  1  Atk.  418.  ris  v.  Kent,  2  Edw.  175.     Att'y  Gen.  v. 

Id.     King  v.   Strong,   9   Paige,    94.  Robbing,  2  P.  Wins.  25. 


558  Trusts.  [Oh.  7 

to  a  particular  fund  for  their  payment,  and  not  simply  a  gift  of  the  fund 
itself,  it  has  been  held  that  they  so  far  partake  of  the  nature  of  specific 
legacies  that  they  will  not  be  compelled  to  abate  with  general  legacies  ; 
it  being  plainly  the  intention  of  the  testator  that  they  should  have  pri- 
ority over  other  general  legacies,  not  made  with  reference  to  a  specific 
fund.1 

The  question  to  whom  a  legacy  is  payable,  is  in  all  cases  one  of  the 
utmost  importance,  and  in  some  instances  cannot  be  settled  without  the 
aid  of  a  court  of  equity.  If  the  legatee  be  an  infant,  the  general  rule  is 
that  it  is  not  payable  to  his  parent,  unless  such  parent  be  appointed  the 
guardian  of  the  infant  by  a  court  of  equity  and  give  ample  security  for 
the  discharge  of  his  trust.2  As  guardian  by  nature,  the  parent  is  not, 
independently  of  statute  regulations,  entitled  to  receive  it.  In  this  state, 
in  case  any  legatee  is  a  minor,  his  legacy,  if  under  the  value  of  fifty 
dollars,  may  be  paid  to  his  father,  to  the  use  and  for  the  benefit  of  such 
minor.3  If  the  legacy  be  of  the  value  of  fifty  dollars  or  more,  the  same 
may,  under  the  direction  of  the  surrogate,  be  paid  to  the  general  guardian 
of  the  minor  ;  who  shall  be  required  to  give  security  to  the  minor,  to  lie 
approved  of  by  the  surrogate,  for  the  faithful  application  and  accounting 
for  such  legacy.4  If  there  be  no  such  guardian,  or  the  surrogate  do  not 
direct  such  payment,  the  legacy  shall  be  invested  in  permanent  securities, 
under  the  direction  of  the  surrogate,  in  the  name  and  for  the  benefit  of 
such  minor,  upon  annual  interest;  and  the  interest  may  be  applied, 
under  the  direction  of  the  surrogate,  to  the  support  and  education  of 
the  minor.5 

And  by  the  act  to  incorporate  the  New-York  Life  Insurance  and  Trust 
Company,6  the  corporation  thus  created  is  authorized  to  receive  moneys 
in  trust,  to  accumulate  the  same  at  such  rate  of  interest  as  may  be  obtained 
or  agreed  upon,  or  to  allow  such  interest  thereon  as  may  be  agreed  on, 
not  exceeding  in  either  case  the  legal  rate.  And  in  all  cases  where  an 
application  shall  be  made  to  the  court  of  chancery,  now  the  supreme 
court,  or  to  a  surrogate  having  jurisdiction  for  the  appointment  of  a 
guardian  of  any  infant,  the  annual  income  of  whose  estate  shall  exceed 
the  sum  of  one  hundred  dollars,  the  court  or  surrogate  has  power  to 


1  Roberts  v.  Pocock,  4  Ves.  150.     En-  3  2  P.  S.  91,  §  46. 

ders  v.  Enders,  2  Barb.  S.  C.  R.  367.  4  Id.  §  47. 

s  Genet  v.  Tallmadge,  t  J.  Ch.  P.  3.  5  Id.  §  48. 

Morrell  v.  Dickey,  id.  153.  s  Laws  of  1830,  p.  76. 


Ch.  7.]  To  whom  Payable.  550 

appoint  the  said  company  as  guardian  of  the  estate  of  such  infant,  without 
requiring  from  the  company  any  bond  or  other  collateral  security.1 

If  a  legacy  be  given  to  a  married  woman,  without  any  particular  direc- 
tion as  to  its  payment,  it  must  be  paid  to  the  husband,  even 'though  the 
husband  and  wife  live  separate  and  apart.2  But  if  the  husband  resorts 
to  the  aid  of  a  court  of  equity  to  obtain  a  legacy  bequeathed  to  his  wife, 
he  must,  if  he  has  not  already  made  a  suitable  provision  for  her,  do  what 
is  equitable,  by  making  a  suitable  provision  out  of  it  for  the  maintenance 
of  her  and  her  children.  And  the  rule  is  the  same  whether  the  husband 
applies  to  the  court  himself,  or  a  suit  for  the  wife's  debt,  legac}-.  portion, 
&c.  is  brought  by  his  legal  representatives ;  and  the  extent  of  the  pro- 
vision  will  depend  on  the  circumstances  of  the  case.3  This  is  called  the 
wife's  equity,  and  will  be  more  fully  considered  under  a  subsequent  head 
relative  to  the  rights  of  married  women.  And  now,  by  statute,  any  mar 
ried  female  may  take  by  inheritance,  or  by  gift,  grant,  devise  or  bequest, 
from  any  person  other  than  her  husband,  and  hold  to  her  sole  and  separate 
use,  and  convey  and  devise  real  and  personal  property,  and  any  interest 
or  estate  therein,  and  the  rents,  issues  and  profits  thereof,  in  the  same 
manner,  and  with  the  like  effect  as  if  she  were  unmarried,  and  the  same 
shall  not  be  subject  to  the  disposal  of  her  husband,  nor  be  liable  to  his 
debt.-.1 

But  independently  of  the  statute,  if  the  legacy  or  bequest  be  made  to 
the  separate  use  of  a  married  woman,  or  where  it  is  given  for  Iter  own 
use  an,/  to  be  at  her  own  disposal,  she  alone  can  give  a  discharge  for  it ; 
and  it  is  properly  payable  by  the  executors  to  her  alone  and  not  to  her 
husband.5  And  the  court  of  chancery  will  protect  her  interest  against 
the  ereditors  of  the  husband,  although  there  be  no  trustee  named  in  the 
will.0 

In  conclusion,  on  this  point,  it  is  proper  to  add,  that  in  this  state,  since 
the  Revised  Statutes,  an  executor  or  administrator  has  no  right  to  retain 
the  property  of  the  deceased,  in  satisfaction  of  his  own  debt,  or  claim, 
until  it  shall  have  been  proved  to  and  allowed  by  the  surrogate,  and  such 

1  Laws  of  1830,  p.  77,  §§  3,  G.  *  L.  of  1818,  p.  307.     L.  of  1849,  p. 

'•'  Palmer  v.  Trevor,  IVern.  251.  Cham-  528,  fame  act  amended, 

berlain  v.  Hewson,  1  Salk.  115 ;  S.  0.,  1  6  Shirley  v.    Shirley,    9    Paige.    3C3. 

Ld.  Raj  .  73.     Howard  v.  Moffatt,  2  J.  Ch.  Prichard  v.  Ames,  1  Turner,  222.     i^w- 

B.  206.  land  v.  Payntcr,  4  Myl.  &  Or.  108. 

'  Howard  v.  Moflatt,  2  J.  Ch.  B.  206.  6  Same  cases. 
Turrel  v.  Turrel.  id.  391.     Van  Epps  v. 
Van  Denser],  4  Paige,  G-i. 


560  Trusts.  [Ch.    r 

debt  or  claim  shall  not  be  entitled  to  any  preference  over  others  of  thb 
same  class.1 

Although  an  extensive  jurisdiction  is  conferred  upon  surrogates'  courts 
over  the  administration  of  the  estates  of  deceased  persons,  and  although 
an  action  at  law  can,  in  many  cases,  be  maintained  by  a  legatee  against 
the  executor  to  recovers  a  legacy,  still,  the  jurisdiction  of  the  court  of 
chancery,  now  the  supreme  court,  is  in  all  cases  concurrent,  and  in  some 
cases  exclusive.2  If,  for  example,  legacies  be  charged  upon  real  estate, 
or  there  be  other  trusts  to  execute  than  the  ordinary  trusts  appertaining 
to  the  office  of  executor,  or,  from  the  situation  of  the  property  or  the  par- 
ties, the  surrogate  has  no  jurisdiction,  the  remedy  is  solely  in  equity 
A  surrogate,  upon  the  settlement  and  distribution  of  an  estate,  is  compe- 
tent to  liquidate  an  equitable,  as  well  as  a  legal  demand  ;3  and  where  a 
will  directs  the  le^al  estate  to  be  sold,  and  makes  but  one  fund  of  the 
leal  and  personal  property  of  the  testator  for  the  purposes  of  the  will, 
ind  the  trust  to  receive  rents  and  profits  prior  to  the  sale  is  a  mere  inci- 
dent of  the  power  to  sell,  the  surrogate  has  jurisdiction  to  call  the  execu- 
tor to  account  for  the  whole  estate,  including  as  well  the  rents  and  profits, 
and  the  proceeds  of  the  real  estate,  as  the  personal  property.4  But  still 
the  surrogate's  court  is  a  court  of  inferior  and  limited  jurisdiction,  and 
those  claiming  under  its  decree  must  show  affirmatively  that  the  surro- 
gate had  authority  to  make  the  decree,  and  that  the  facts  upon  which  he 
acted  gave  him  jurisdiction  of  the  subject  matter  and  of  the  persons  before 
him.5  Hence,  in  cases  of  importance,  and  especially  if  the  facts  be  com- 
plicated, or  the  question  of  jurisdiction  be  doubtful,  the  parties  will  in 
general  resort  to  equity  for  aid  in  bringing  to  a  close  the  administration 
of  the  estate  of  a  deceased  person. 

The  jurisdiction  of  courts  of  equity  in  this  matter  owes  its  origin,  in 
a  great  degree,  to  the  undoubted  jurisdiction  of  the  court  over  matters  of 
trust.  Equity  treats  the  executor  or  administrator,  as  the  case  may  be, 
who  has  in  his  hands  the  property  of  the  testator  or  intestate,  as  a  trustee  ; 
and  holds  him  bound  to  apply  the  property  to  the  payment  of  the  debts 
of  the  deceased,  and  if  any  remains,  to  distribute  it  among  his  legatees,  if 
any,   or  among  his  kindred,  according  to  the  statute  of  distributions. 

0  R.  S.  88,  §  33.     L.  of  1837,  p.  531,  "  Dakin   v.    Hudson,    6   Cowen,   221. 

|  37.  Bloom  v.  Burdick,  1  Hill,  130.     Convin 

2  2  R.  S.  92  et  seq.    Id.  450.  v.  Merritt,  3  Barb.  S.  0.  E.  341.    Dakin 

1  Payne  v.  Mathews,  6  Paige,  19.  v.    Deining,    6    Paige,    95.     People    v. 

4  Stagg  v.  Jackson,  2  Barb.  Ch.  R.  8G;  Barnes,  12  Wend.  492.     Same  v.  Corliea 

affirmed,  1  Comst.  200.  1  Sandf.  S.  C.  R.  22S. 


Ch.  7.J  Administration.  561 

There  may  be  and  doubtless  are  other  grounds  of  jurisdiction;  such  as 
the  necessity  of  taking  accounts,  and  obtaining  discovery  ;  the  imperfec- 
tion or  inadequacy  of  the  remedy  at  law,  or  in  the  surrogate's  court ;  and 
the  necessity,  in  some  cases,  of  obtaining  an  injunction  against  a  misap- 
plication of  the  funds  pending  the  litigation.  But  whatever  be  the  origin 
of  the  jurisdiction,  it  has  been  exerted  for  more  than  a  century,  and  is 
amongst  the  most  important  and  least  contested  of  its  powers.1 

The  application  for  relief  in  the  administration  of  estates  is  sometimes 
made  by  the  executors  or  administrators  themselves,  when  the  affairs 
of  the  estate  are  so  involved  that  they  cannot  safely  be  administered 
without  the  aid  of  the  court.  It  is  sometimes  made  in  behalf  of  specific 
legatees  to  marshal  assets  in  their  favor  against  the  heir.2  It  is  perhaps 
more  frequently  made  in  behalf  of  creditors,  seeking  a  discovery  of 
assets,  and  a  proper  application  of  them  to  the  debts  of  the  deceased.3 
And  it  is  sometimes  done  by  the  court  itself,  where  there  are  divers  suits 
for  legacies,  and  there  is  an  allegation  of  a  deficiency  of  the  fund,  in  order 
that  an  account  may  be  taken  in  one  cause,  and  the  defendant  be  protected 
from  unnecessary  trouble  and  expense.  In  such  case,  all  the  parties 
interested  in  the  fund  are  allowed  to  come  in  under  the  decree.4  It  is 
matter  of  discretion  with  the  courtj  in  such  cases,  in  which  action  the 
account  will  be  taken. 


SECTION  XIV. 

OF   ADMINISTRATION   AND    MARSHALING   ASSETS. 

i 

The  doctrine  of  marshaling  assets  in  behalf  of  legatees,  creditors 
or  distributees,  is  analogous  to  that  of  marshaling  securities  in  fa- 
vor of  creditors  and  sureties,  which  has  already  been  considered.  It 
rests  upon  the  general  principle  of  equity,  that  if  a  claimant  has  two 
funds  to  which  he  may  resort,  a  person  having  an  interest  in   one  only, 


1  Bac.  Abr.  Leg.  M.     1  Mad.  Ch.  Pr.        a  Livingston  v.  Livingston,  3  J.  Ch.  R. 
466.     Adair  v.  Shaw,  1  Sch.  &  Lefr.  262.    148. 

Farrington  v.  Knightly,  1  P.  Wms.  549,        3  Thompson  v.  Brown,  4  J.  Ch.  R.  631. 
and  note  550.    Duke  of  Rutland  v.  Rut-        4  Ross  v.  Crary,  1  Paige,  416.    Kettle 
land,  2  id.  210.     Hovey  v.  Blakeman,  4     v.  Crary,  id.  note. 
Ves.  607.    Ripley  v.  Water  worth,  7  id. 
452.    7  id.  197. 

Kq.  Jur.  71 


562  Trusts.  [Ch  7. 

has  a  right  to  compel  the  former  to  resort  to  the  other,  if  that  becomes 
necessary  to  satisfy  both.1 

Assets  are  either  real  or  personal,  and  legal  or  equitable.  Legal  assets 
are  such  as  constitute  the  fund  for  the  payment  of  debts  according  to 
their  legal  priority.  Equitable  assets  are  such  as  can  be  reached  only 
by  the  aid  of  a  court  of  equity,  and  are  divisible  pari  passu  among  all 
the  creditors.2  Every  thing  may  be  considered  as  equitable  assets, 
which  the  debtor  has  made  subject  to  his  debts  generally,  and  which, 
without  his  act,  would  not  have  been  subject  to  his  debts  generally.3 
The  general  doctrine  is  to  encourage,  as  much  as  possible,  the  idea  of 
equitable  assets,  because  equality  in  the  payment  of  debts  is  equity,  and 
the  rule  of  distribution  in  chancery  is  founded  on  principles  of  natural 
justice.4 

Again :  Assets  may  be  partly  legal  and  partly  equitable,  and  the 
court  will  discriminate  in  the  distribution  of  them,  following  the  rule  of 
law  as  to  the  legal  assets,  so  as  to  prevent  confusion  in  the  administration 
of  the  estate,  but  directing  the  equitable  assets  to  be  applied  ratably 
among  all  the  creditors  without  preference.5  Under  this  rule  legal  assets 
will  be  distributed  among  the  creditors  according  to  their  legal  priorities, 
but  those  who  take  of  the  legal  assets  will  receive  no  part  of  the  equita- 
ble assets,  until  they  shall  have  been  so  applied  as  to  produce  equal- 
ity among  all.6 

In  one  case.7  it  was  said,  that  previous  to  the  decision  of  the  chancellor 
in  Thompson  v.  Brown,  (supra.)  it  was  well  settled,  that  in  a  court  of  equity 
legal  assets  must  be  distributed  according  to  the  common  law,  in  a  due 
course  of  administration,  and  that  the  court  only  refused  to  give  a  prefer- 
ence to  one  debt  over  another  of  the  same  class  ;  that  is,  that  all  the 
judgments  against  the  deceased  which  were  not,  at  law,  a  lien  upon  the 
fund  to  be  distributed,  must  be  paid  in  the  first  place,  but  ratably  only, 
and  without  regard  to  the  time  in  which  they  were  entered ;  and  debts 
of  the  several  other  classes  in  the  same  manner ;  that  it  was  only 
judgments  or  decrees  obtained  against  the  personal  representatives  which 
gave  the  creditors,  obtaining  such  judgments,  a  privilege  over  other  cred- 
itors whose  debts  were  originally  of  the  same  class.     The  expression  in 

1  Aldrich  v.  Cooper,  8  Ves.  388,  and  *  Moses  v.  Murgatroyd,   1   J.  Ch.  R. 

notes  to  the  same  in  "White's  Eq.  Cas.  vol.  130. 

2,  184  et  seq.  6  Id.  119. 

5  Purdy  v.  Doyle,  1  Paige,  558.   Wilder  6  Purdy  v.  Doyle,  1  Paige,  558.   Wilder 

v.  Keeler,  3  id.  167.  v.  Keeler,  3  id.  167. 

»  1  Mad.  Ch.  Pr.  473.    Fonb.  Eq.  pt.  2,  7  Wilder  v.  Keeler,  supra, 
ch.  2,  §  1  and  note. 


Ch.  7.]  Administration.  563 

the  usual  decree  for  the  payment  of  debts  in  a  due  course  of  administra- 
tion, and  without  preference  to  any,  meant  without  that  preference  which 
the  personal  representative  or  heir  at  law  had  a  right  to  give  to  debts  of 
a  particular  class  over  other  debts  of  the  same  class,  previous  to  the  com- 
mencement of  a  suit  against  him.  The  Revised  Statutes  adopted  the 
principle,  that  in  the  payment  of  judgments  or  decrees  enrolled  against 
the  deceased,  they  should  be  paid  according  to  the  priority,  as  indicated 
by  the  date  of  the  docket  thereof.  The  common  law.  order  for  the  pay 
ment  of  debts  was  altered  and  a  rule  adopted  analogous  to  that  prevailing 
in  equity  previous  to  that  time,  except  in  the  preference  given  to  judg- 
menta  and  decrees  against  the  deceased.  The  whole  rule  divides  the 
debts  of  the  deceased  into  four  classes,  and  directs  the  executor  or  admin- 
istrator  to  pay  the  same  according  to  the  following  order   of  classes  : 

1.  Debts  entitled  to  a  preference,  under  the  laws  of  the   United  States. 

2.  Taxes  assessed  upon  the  estate  of  the  deceased,  previous  to  his  death. 

3.  Judgments  docketed,  and  decrees  enrolled,  against  the  deceased,  accord- 
ing to  the  priority  thereof,  respectively.  4.  All  recognizances,  bonds, 
sealed  instruments,  notes,  bills  and  unliquidated  demands  and  accounts.' 
And  it  is  expressly  enacted,2  that  no  preference  shall  be  given  in  the  pay- 
ment of  any  debt  over  other  debts  of  the  same  class,  except  those  speci- 
fied in  the  third  class  ;  nor  shall  a  debt  due  and  payable  be  entitled  to 
preference  over  debts  not  due ;  nor  shall  the  commencement  of  a  suit  for 
the  recovery  of  any  debt,  or  the  obtaining  a  judgment  thereon  against  the 
executor  or  administrator,  entitle  such  debt  to  any  preference  over  others 
of  the  same  class.  Debts  not  due,  may  be  paid  by  an  executor  or  admin- 
istrator, according  to  the  class  to  which  they  belong,  after  deducting  a  re- 
bite  of  legal  interest  upon  the  sum  paid,  for  the  time  unexpired.  These 
a:  id  other  statutory  regulations  on  the  same  subject,  removed  the  temp 
tation  which  formerly  existed,  to  prosecute  the  executors  or  administra 
tors  as  soon  as  possible  after  the  granting  to  them  of  letters  testamentary 
or  of  administration.  And  the  equitable  principle  thus  adopted,  which 
placed  creditors  by  simple  contract  upon  the  footing  of  those  by  spe- 
cialty, have  rendered  applications  to  equity  for  the  purpose  of  marshaling 
assets,  less  frequent  and  less  necessary. 

In  the  ordinary  administration  of  real  and  personal  property,  for  the 
payment  of  debts,  which  have  no  lien  upon  any  portion  of  the  estate,  the 
assets  are  applied  in  the  following  order :  1.  The  personal  estate,  not 
specifically  bequeathed  or  plainly  exempted  from  the  payment  of  debts 
by  some  provision  in  the  will  of  the  testator.     2.  Lands  expressly  devised 

1  2  ft.  S.  87,  ?  27.  *  Id  §  28. 


564  Trusts.  [Ch."  fj 

for  tlie  payment  of  debts,  not  merely  charged,  but  devised  or  ordered  t- 
be  sold.  3.  Descended  estates.  4.  Lands  charged  with  the  payment  ^i 
debts.1 

in  cases  where  the  next  of  kin,  legatees,  heirs  and  devisees  arc  liable 
for  the  debts  of  their  ancestor,  the  same  order  of  preference  is  preserved 
as  is  prescribed  for  the  government  of  executors  and  administrators.2 
Descended  estates,  therefore,  are  equally  liable  to  the  payment  of  the 
simple  contracts  of  the  ancestor,  as  his  specialties. 

The  personal  estate  is  the  primary  fund  for  the  payment  of  debts,  and 
is  to  be  first  resorted  to,  though  the  debts  be  charged  also  on  the  real 
estate.3  This  is  the  natural  fund,  both  for  the  payment  of  debts  and  leg- 
acies, and  the  testator  is  presumed  to  act  upon  this  doctrine,  until  he 
shows  some  other  distinct  and  unequivocal  intention.4  Where  the  per- 
sonal estate  is  not  in  terms  exonerated,  and  is  not  specifically  given  away 
by  the  will,  it  will  be  deemed  the  primary  fund  for  the  payment  of  lega- 
cies, notwithstanding  such  legacies,  by  the  terms  of  the  will,  are  expressly 
charged  upon  the  persons  to  whom  the  real  estate  is  devised.  The  charge 
upon  the  devisees  in  such  a  case  will  be  deemed  in  aid,  and  not  in  exone- 
ration of  the  primary  fund.5 

The  residuary  personal  estate  is  more  particularly  the  primary  fund 
for  the  payment  of  the  testator's  debts,  where  no  other  provision  is  made.6 

But  the  testator  may  charge  his  real  estate  with  the  payment  of  his 
lebts,  in  exoneration  of  his  personal  property.  In  such  case,  should  the 
debt  be  collected  by  the  creditor  out  of  the  personal  estate  of  the  de 
ceased,  or  out  of  the  real  estate  descended  to  his  heirs  at  law,  the  legatees 
of  the  personalty,  or  the  heirs  at  law  of  the  real  estate,  whose  property 
has  been  thus  applied,  will  be  entitled  to  be  subrogated  to  the  rights  of 
the  creditors  as  against  the  primary  fund.  To  avoid  circuity  of  action, 
therefore,  a  court  of  equity  permits,  and  sometimes  requires,  a  creditor, 
who  has  two  funds  to  resort  to  for  the  payment  of  his  debt,  to  proceed  at 
once  against  the  primary  fund ;  without  subjecting  the  owners  of  the 
secondary  fund  to  useless  litigation.7  Where  the  testator,  therefore,  has 
charged  his  real  estate,  or  any  part  of  it,  with  the  payment  of  his  debts, 
in  exoneration  of  his  personalty,  the  creditors  may  come  at  once  into  a 


1  Livingston  v.  Newkirk,  3  J.  Ch.  R.        4  Hoes  v.  Van.  Hoesen,  1  Barb.  Oh.  R 
312,  325.    Donne  v.  Lewis,  2  Bro.  0.  C.  379;  affirmed  on  appeal,  1  Couist.  121- 
257,263.    lid.  528.    Manning  v.  Spoon-        5  Id. 

er,  3  Yes.  jr.  114.  6  Smith    v.   "Wyckoff,    11    Paige,   49 

2  2  R.  S.  453,  §  37.  Ilawley  v.  James,  5  Paige,  318. 

'  MeKav  v.  Green,  3  J.  Ch.  R.  56.  7  Smith  v.  Wyckoff,  11  Paige,  57. 


CJj   7.J  Administration.  505 

court  of  equity  to  obtain  satisfaction  of  such  debts  out  of  the  primary 
fund  ;  although  they  may  have  a  perfect  remedy  at  law  against  the  per- 
sonal estate  in  the  hands  of  the  executors.1 

But  the  usual  clause  in  a  will,  devising  all  the  rest  of  the  testator's 
real  and  personal  estate  not  before  devised,  for  the  payment  of  debt?,  is 
not  sufficient  to  show  an  intention  to  charge  the  real  estate  ;  nor  is  a 
direction  that  all  debts  and  legacies  are  to  be  paid.  But  if  the  real  estate 
be  devised,  "  after  payment  of  debts  and  legacies,"  it  is  charged  with 
them.'2  So  also  where  the  testator  devises  the  real  estate,  after  a  direc- 
tion that  debts  and  legacies  be  first  paid,  the  real  estate  has  been  held 
to  be  well  charged.3 

In  marshaling  the  assets,  the  estate  descended  to  the  heirs  is  to  be 
applied  to  the  payment  of  debts,  before  the  estate  devised,  unless  the 
latter  be  devised  specially  to  pay  debts.'1  The  heir  is  not  entitled  to 
contribution  from  the  devisees,  toward  the  satisfaction  of  the  creditors  of 
the  testator ;  nor  does  equity  help  a  pecuniary  legatee  to  throw  a  debt 
against  the  personal  estate  upon  a  devisee  of  land.5  Equity  will  even 
marshal  the  real  assets  descended  to  the  heir,  in  favor  of,  or  for  the  relief 
of  specific  legatees,  but  it  will  not,  for  such  a  purpose,  interfere  with  the 
lands  devised,  unless  they  were  devised  subject  to  the  payment  of  debts.6 

Where  there  are  different  devisees,  in  respect  to  a  charge,  to  which 
their  lands  are  equally  bound  by  the  will,  they  must  contribute,  on  a 
deficiency  of  assets,  in  proportion  to  the  value  of  their  respective  inter- 
ests ;  as  to  pay  an  annuity  to  the  widow  of  the  testator,  or  debts  remain- 
ing unsatisfied  after  the  personal,  and  all  the  real  estate  not  devised,  hns 
been  exhausted.7 

As  between  heirs  and  devisees,  the  land  which  is  undisposed  of  by  the 
will,  is  primarily  liable  for  the  payment  of  the  testator's  debts,  when  the 
personal  estate  is  insufficient  for  that  purpose.3 

Equity  will  apply  personal  property  of  the  testator,  which  is  subse- 
quently acquired,  in  favor  of  a  devisee  of  the  realty,  where  lands  have 
been  taken  by  operation  of  law,  to  pay  the  debts  of  the  deceased,  in  case 


1  Smith  v.  Wyckoff,  11  Faige,  57.  6  Livingston  v.  Livingston,  3  J.  Ch.  R. 

1  Lupton  v.  Lupton,  2  J.  Ch.  R.  614.  148. 

Tompkins  v.  Tompkins,  Prec.  in  Ch.  3(J7.  6  Id.     Ilanby  v.  Roherts,   Ambl.    1*28. 

Shallcross  v.  Finden,  3  Ves.  738.  Clifton  v.  Burt,  1  P.  Wins.  678.     Hade- 

5  Holt  v.  Vernon,  Prec.   in  Ch.  430.  wood  v.  Pope,  3  P.  Wins.  322,  5th  Res'n. 

JVilliams  v.  Chitty,  3  Ves.  545.  7  Livingston  v.  Livingston,  3  J.  Ch.  R, 

4  Livingston  v.  Livingston,  S  J.  Ch.  R.  148. 

148.  •  Graham  r.  Dickinson,  3  Barh.  Ch.  R. 

169. 


5G6  Trusts.  [Oh.  7. 

■where  such  lands  were  not  charged  with  the  payment  of  debts,  and  where; 
consequentby,  the  personal  estate  was  the  primary  fund  for  that  purpose. 
Thus,  where  a  testator  charged  his  personal  estate  with  the  payment  of 
his  debts,  but  it  being  insufficient  for  that  purpose,  his  executors  applied 
to  the  surrogate  for,  and  obtained  an  order  for  the  sale  of  his  real  estate 
in  the  possession  of  the  devisees,  which  was  sold  accordingly,  and  tho 
proceeds  applied  to  the  payment  of  the  debts  of  the  testator :  and  subse- 
quently the  commissioners,  under  the  treaty  with  France,  awarded  to  the 
executors  a  sum  of  money,  upon  a  claim  which  their  testator  had  against 
thp  French  government  at  the  time  of  his  death;  which  sum  they  received 
for  the  benefit  of  the  estate ;  it  was  held  that  the  sum  of  money  thuu 
received  upon  the  French  claim  was,  in  -quity,  to  be  considered  as  a 
substitute  for  the  real  estate  sold  for  the  payment  of  debts  primarily 
chargeable  upon  the  testator's  personal  property,  and  that  it  belonged  to 
those  who  were  the  devisees,  or  the  owners  of  the  land  thus  sold,  at  the 
time  of  the  sale.1 

In  cases  where  the  real  property  has  thus  been  taken  for  the  payment 
of  the  debts  of  the  deceased,  and  personal  property  which  ought  to  have 
been  primarily  appropriated  to  that  purpose  is  discovered,  the  question 
has  arisen  whether  the  personal  property,  to  which  the  owner  of  the 
realty  has  by  such  sale  become  entitled,  shall  be  distributed  to  his  repre- 
sentatives, in  case  of  his  death  before  the  application,  as  real  or  personal 
estate.  This  question  may  assume  an  importance  when  the  heirs  at  law 
or  devisees  are  a  different  class  of  persons  from  the  persons  entitled  to 
succeed  to  the  personal  estate  under  the  statute  of  distribution.  Though 
the  fund  thus  received  is  a  substitute  for  the  real  estate  thus  taken  for 
the  payment  of  debts,  still  it  is  not  real  property,  but  a  remuneration  for 
the  loss  of  real  property.  As  the  real  and  personal  representatives  are 
alike  volunteers,  there  is  nothing  to  take  the  case  out  of  the  general  rule, 
that  they  must  take  their  estate  of  the  intestate  as  they  find  it,  and  it 
was  so  held  by  the  chancellor  in  Graham  v.  Dickinson,  (supra.) 

So  also,  if  a  judgment  debtor  should  die,  leaving  personal  property 
sufficient  to  pay  his  debts,  and  the  sheriff,  having  advertised  the  real 
estate  of  the  deceased  for  sale  previous  to  his  death,  should  afterwards 
proceed  and  sell  the  same,  after  it  had  become  the  real  estate  of  the  heir 
at  law,  the  latter  would  be  entitled  to  be  subrogated  to  the  rights  of  the 
judgment  creditors  as  against  the  personal  estate  which  was  primarily 
liable  for  the  payment  of  such  debts.2 

1  Graham  v.  Dickinson,  3  Barb.  Ch.  R.  Dickinson,  3  Barb.  Ch.  E.  183.  Sink)  t 
169.  Kearney,  2  id.  551. 

*  Per  Walworth,   Ch.,  in  Graham   v. 


Ch.  7.]  Administration.  dG7 

In  equity,  land  contracted  for,  descends  to  the  heir  at  law  as  real  estate, 
and  if  the  purchase  money  is  unpaid,  the  heirs,  as  between  them  and  the 
personal  representatives,  can  require  the  latter  to  discharge  the  debt 
from  the  personal  estate.1 

The  same  rule  originally  prevailed  where  the  owners  of  real  estate 
gave  a  bond  and  mortgage  for  his  own  debt,  in  winch  case  on  his  death, 
as  between  the  heirs  and  the  personal  representatives,  the  personal 
property  was  the  primary  fund,  and  the  heirs  could  require  the  executors 
or  administrators  to  pay  off  the  mortgage  out  of  the  personal  estate.2 
The  bond  was  treated  as  the  principal,  and  the  mortgage  as  the  security  ; 
and  as  the  personal  property  has  been  shown  to  be  the  primary  fund  for 
the  payment  of  debts,  it  necessarily  followed  that  the  heir,  in  the 
absence  of  any  special  directions  in  the  will  to  the  contrary,  could  require 
the  representatives  of  the  personalty  to  remove  the  incumbrance.  But 
this  rule  has  been  abrogated  by  the  Revised  Statutes,  which  have  estab- 
lished the  following  rule  :  Whenever  any  real  estate,  subject  to  a  mort- 
gage executed  by  an  ancestor  or  testator,  shall  descend  to  an  heir,  or 
pass  to  a  devisee,  such  heir  or  devisee  shall  satisfy  and  discharge  such 
mortgage  out  of  his  own  property,  without  resorting  to  the  executor  or 
administrator  of  his  ancestor,  unless  there  be  an  express  direction  in  the 
will  of  such  testator,  that  such  mortgage  be  otherwise  paid.3  The  effect 
of  this  provision  is  to  make  the  land,  in  such  a  case,  the  primary  fund  for 
the  payment  of  the  mortgage  debt,  instead  of  the  personal  estate,  when 
the  will  is  silent  on  the  subject.4  And  this  provision  includes  a  mort- 
gage debt  assumed  by  the  testator  on  purchasing  a  part  of  previously 
mortgaged  premises,  as  constituting  an  equitable  mortgage  of  the  part 
purchased;5  and  it  extends  to  intestates'  estates,  as  well  as  to  estates 
wholly  or  in  part  disposed  of  by  will.6 

The  mortgage  creditor  is  entitled  to  full  satisfaction  of  his  debt,  out  of 
the  estate  of  the  deceased,  if  there  be  enough  for  that  purpose.  But  he 
must  first  resort  to  the  estate  mortgaged,  which  as  to  him  is  the  primary 
fund,  and  is  entitled  to  come  in  pro  rata  with  other  creditors  against  the 
personal  estate,  only  for  so  much  of  his  debt  as  cannot  be  realized  from 
the  land.7 

1  Champion  v.  Brown,  6  J.  Ch.  R.  402.  3  1  R.  S.  749,  §  4. 

Johnson  v.  Corbett,  11  Paige,  272.     Liv-  *  Johnson  v.  Corbett,  11  Paige,  205. 

mgston  v.  Newkirk,  3  J.  Ch.  R.  312.  s  Ilalsey  v.  Reed,  9  Paige,  449. 

3  Mollan  v.  Griffith,  3  Paige,  404.   King  a  House  v.  House,  10  Paige,  158. 

/.  King,  3  P.  Wins.  358.     Cumberland  v.  7  Ilalsey  v.  Reed,  9  Paige,  440.    John- 

Codrinjiton,  3  J.  Ch.  R.  257.     Lanoy  v.  sou  v.  Corbett,  11  id.  205. 
Atb'/,  2  Atk.  441. 


568  Trusts.  [Ch.  7 

Upon  the  principle  that  the  estate  mortgaged  is  the  primary  fund  foi 
satisfying  the  mortgage,  if  the  mortgagee  delay  to  foreclose,  for  the  ac- 
commodation of  the  heirs,  and  the  land  fall  in  value,  the  deficiency  occa- 
sioned by  such  delay  is  not  chargeable  against  the  administrators,  who 
have  applied  the  whole  personal  property  to  the  payment  of  other  debts, 
but  must  be  borne  by  the  creditor,  unless  he  can  be  reimbursed  out  of 
other  lands  belonging  to  the  heir.1 

The  intention  of  the  testator,  if  consistent  with  the  rules  of  law,  will 
always  be  carried  out,  as  far  as  practicable,  in  the  disposition  of  his 
estates.  He  may  make  by  his  will,  real  es'tate,  or  a  particular  portion  of 
it,  the  primary  fund,  both  for  the  payment  of  debts  and  legacies  ;  and 
the  land  may  become  the  primary  fund  for  the  payment  of  specific  or  gen- 
eral liens,  by  the  contract  of  the  purchaser.2  Should  the  vendee  of  a 
piece  of  land  stipulate  to  pay  as  a  part  of  the  purchase  money,  a  judgment, 
which  was  also  a  lien  upon  other  lands,  there  can  be  no  doubt  that  the 
land  so  purchased  becomes  the  primary  fund  for  the  payment  of  the  same 
as  between  the  judgment  creditor  and  the  owners  of  other  real  estate,  and 
as  between  him  and  the  personal  representatives  of  the  judgment  debtor. 
So,  where  there  is  a  specific  lien  on  the  land  devised,  as  in  the  case  of  a 
mortgage,  or  where  the  land  is  devised  on  condition  of  the  payment  of 
debts,  or  the  debts  are  directed  to  be  paid  out  of  the  estate  devised,  and 
where  it  appears  from  the  will,  that  it  was  obviously  the  intention  of  the 
testator  that  the  legacy  should  be  received  entire,  and  the  debts  paid  out 
of  other  funds,  the  court  will  marshal  the  property  in  such  a  manner  as 
to  carry  that  intention  into  effect.3 

If  the  testator  specifically  bequeaths  his  chattels  to  one  person,  and 
devises  his  real  estate  to  another,  without  any  directions  as  to  which 
property  shall  be  appropriated  to  satisfy  an  existing  judgment  against 
him,  the  personal  property  must  be  first  applied  to  that  object.4 

Where  the  testator  subjects  his  real  estate  to  the  payment  of  all  his 
debts,  and  a  creditor  is  satisfied  out  of  the  personal  estate,  so  as  to  leave 
no  fund  for  the  payment  of  legacies,  equity  will  marshal  the  assets  in 
favor  of  the  legatees,  and  permit  them  to  stand  in  place  of  the  creditors 
with  respect  to  the  real  estate.5 

In  like  manner,  where  one  or  more  legacies  are  charged  on  the  real 

1  Johnson  v.  Corbett,  11  Paige,  272.  4  Rogers  v.  Rogers,  1  Paige,  1SS;  af 

8  Cumberland  v.  Codrington,  3  J.  Ch.  firmed,  3  "Wend.  503. 

R.  229.  6  Haslewood  v.  Pope,  3  P.  Wms.  323. 
'  Rogers  v.  Rogers,  1  Paige,  190. 


Oh.  7.J  Charities.  5b9 

estate,  another  legatee,  whose  legacy  is  not  so  charged,  shall  stand  in  the 
place  of  the  former  legatees,  to  be  satisfied  out  of  the  real  estate.1 

The  principle  on  which  assets  are  marshaled  in  favor  of  legatees 
assumes  that  all  the  legacies  are  valid,  and  might,  if  so  directed  by  the  tes- 
tator, be  paid  out  of  either  fund.  Hence  if  one  of  the  legacies  be  void  as 
to  the  real  estate,  as  in  the  case  of  a  charitable  bequest,  equity  will  not 
marshal  assets  in  its  favor,  so  as  to  give  it  effect  out  of  the  personal  estate. 
This  would  be  to  do  indirectly  what  could  not  be  done  directly.2 

In  concluding  this  topic,  it  may  be  added,  that  courts  of  equity  do  not 
confine  themselves  to  the  remedy  against  the  executors  or  administrators, 
who  violate  their  trusts,  but  will  hold  all  persons  accountable,  who  aid  and 
assist  the  executors  and  administrators,  with  a  knowledge  of  their  mis- 
conduct, in  misapplying  the  assets.  Any  person  receiving  from  an  exec- 
utor the  assets  of  his  testator,  knowing  that  such  disposition  of  them  is  a 
violation  of  his  duty,  is  to  be  adjudged  as  conniving  with  the  executor  to 
work  a  devastavit,  and  is  accountable  to  the  person  injured,  by  such  dis- 
position directly,  on  a  bill  filed  by  him.3  Whenever  there  is  a  misappli- 
cation of  the  assets,  and  they  can  be  traced  into  the  hands  of  a  party 
affected  with  notice  of  such  misapplication,  the  trust  will  attach  upon  the 
property  or  its  proceeds  in  the  hands  of  such  person,  whatever  may  have 
been  the  extent  of  such  conversion  or  misapplication.4 


SECTION  XV. 


OF  CHARITIES. 


The  doctrine  of  charities,  and  of  charitable  uses,  is  comprised  in  tn* 
law  of  trusts,  as  administered  by  courts  of  equity,  and  forms  an  important 
branch  of  equity  jurisprudence.  In  its  widest  extent,  the  word  charity 
denotes  all  the  good  affections  which  men  ought  to  bear  to  each  other  ;  in 
its  most  restricted  sense,  it  imports  relief  to  the  poor.  In  neither  of 
these  senses  is  it  employed  in  chancery.5 

1  Att'y  Gen.  v.  Tyndall,   Ambl.   014.  s  Colt  v.Lasnier,  9  Oowen,  320.  Kcane 
Foster   v.    Blagden,    id.    704.     Mogg   v.  v.  Roberts,  4  Mad.  R.  357,  358. 
BbdgM,  2  Ves.  sen.  52.     Hilliard  v.  Tay-  *  Gilchrist  v.  Stevenson,  9  Barb.  S.  0. 
lor,  Ambl.  713.  R.  9.     Adair  v.  Shaw,  1  Sch.  &Lefr.  261, 

2  Bonner  v.  Bonner,  13  Ves.  379.  Bligh  2fi2. 

v.  Lord  Darnley,  2  P.  Wins.  (520.     Mas-        »  Morice  v.  Bishop  of  Durham,  9  Vei 
ten  v  Masters,  1  id.  421.  423.  405. 

Ey.  J  in.  72 


570  Trusts.  [Ch.  7 

On  one  occasion  Lord  Camden  said,  that  a  gift  to  a  general  public  use 
which  extends  to  the  rich  as  well  as  the  poor,  falls  under  the  definition 
of  a  charity.1  And  in  general  it  may  be  said  that,  in  England,  sinc6 
the  43  Elizabeth,  ch.  4  the  courts  of  that  country,  when  the  question 
has  been  whether  a  particular  gift,  devise  or  bequest  could  be  upheld  as 
a  charity,  have  referred  to  that  statute,  as  containing  an  enumeration 
of  the  cases  which  fall  within  the  scope  of  the  term.  A  charity  may  be 
created  by  any  conve}Tance  competent  to  pass  the  title  to  property, 
though  questions  of  this  kind  most  frequently  arise  upon  wills.2 

The  statute  of  43  Eliz.  ch.  4,  contains  internal  evidence  that  the 
jurisdiction  of  the  court  over  charities  was  then  firmly  established,  and 
that  the  statute  was  not  intended  to  introduce  any  new  subject  of  juris- 
diction. Its  object  was  to  prescribe  a  less  dilatory  and  expensive  method 
of  establishing  charitable  donations,  which  were  understood  to  be  valid 
by  the  laws  antecedently  in  force.3  It  enacts  that  the  commissioners 
shall  inquire  of  the  following  uses  as  good  and  charitable,  viz  :  For  relief 
of  aged,  and  impotent  or  poor  people  ;  for  maintenance  of  sick  ar.d 
maimed  soldiers,  schools  of  learning,  free  schools,  scholars  in  universities, 
houses  of  correction  ;  for  repairs  of  bridges,  of  ports  and  havens,  of 
causeways,  of  churches,  of  sea  banks,  of  highways ;  for  education  and 
preferment  of  orphans,  for  marriage  of  poor  maids,  for  support  and  help 
of  young  tradesmen,  of  handicraftsmen,  of  persons  decayed ;  for  redemp- 
tion or  relief  of  prisoners  or  captives,  for  care  and  aid  of  poor  inhabit- 
ants, concerning  payment  of  fifteenths,  setting  out  of  soldiers,  and  other 
taxes;1  other  gifts,  provisions  and  limitations  which,  though  not  within 
the  letter,  have  been  held  to  be  within  the  purview  of  the  statute,  as 
money  to  maintain  a  preaching  minister,5  or  to  a  protestant  dissenting 
chapel.6  So  for  the  building  of  a  session  house  for  a  city  or  county,  the 
making  of  a  new  or  repair  of  an  old  pulpit  in  a  church,  or  the  buying  of 
a  pulpit  cloth  or  pulpit  cushion,  or  the  setting  up  of  new  bells  -where  none 
are,  or  amending  them  when  they  are  out  of  order.7  So  a  devise  of 
money  to  a  minister  to  preach  an  annual  sermon,  and  keep  a  tomb-stone 
and  inscription  in  repair,  and  to  a  corporation  for  keeping  accounts 
thereof,  is  a  charitable  use.8 

On  one  occasion,  Marshall,  Ch.  J.,  intimated  that  charitable  bequests, 

1  Jones  v.  Williams,  Ambl.  652.  Abr.   tit.    Charitable    Uses    and    Mort- 

"Williains  v.  "Williams,  court  of  ap-  main,  0. 

peals,  IST.  Y.  1853.  5  Att'y  Gen.  v.  Newcomb,  14  Yes.  1. 

8  Per  Jones,  Ch.,  9  Cowen,  476,  477.  6  Att'y  Gen.  v.  Fowler,  15  Yes.  85. 

4  2  Fonb.  B.  2,  pt.  2,  ch.  1,  §  2,  note  b.  7  Duke's  Charitable  Uses,  109.   2  Fonb 

Note  w  to  Porter's  case,  1  Co.  26.    Bac.  B.  2,  pt.  2,  ch.  1,  §  2,  note. 

8  Id 


Ch  7.]  Charities  571 

•where  no  legal  interest  is  vested,  and  which  are  too  vague  to  be  claimed 
by  those  for  whom  the  beneficial  interest  was  intended,  cannot  be  estab- 
lished by  a  court  of  equity,  enforcing  the  prerogative  of  the  king,  as  pa- 
rens palrice,  independently  of  the  statute  of  43  Elizabeth.1  But  this 
doctrine  was  denied  by  Chancellor  Walworth,2  and  was  shown  by  the 
supreme  court  of  the  United  States  to  be  wrong  in  a  subsequent  case.3 
It  has  been  conclusively  proved  that  the  court  of  chancery  exercised 
jurisdiction  over  charities  anterior  to  the  statute  of  Elizabeth,  and  upon 
the  common  law.4 

The  other  provisions  of  the  statute  43  Elizabeth,  ch.  4,  show  that  they 
were  not  introductory  of  a  new  jurisdiction,  but  were  designed  to  regulate 
one  already  and  for  a  long  time  in  being.  Thus,  the  statute,  after  enu- 
merating the  species  of  property  which  had  been  devoted  to  charity,  and 
describing  the  charities  which  had  been  upheld,  as  above  mentioned,  and 
adverting  to  the  fact  that  the  property  thus  devoted  to  charity  had  not 
been  employed  according  to  the  charitable  intent  of  the  giver,  enacts,  for 
remedy  thereof,  that  the  lord  chancellor  and  the  chancellor  of  the  duchy 
of  Lancaster  should  be  authorized  to  issue  commissions  into  the  several 
dioceses,  directed  to  the  bishop  and  his  chancellor  and  others,  to  inquire 
by  a  jury  as  to  such  gifts  as  are  before  enumerated,  and  the  abuses  ot 
them,  and  to  make  orders,  decrees  and  judgments  for  the  employment  of 
the  property  for  the  purposes  for  which  it  was  given  ;  which  orders  are  to 
be  certified  into  the  court  of  chancery,  there  to  be  executed,  until  altered 
by  the  lord  chancellor  upon  complaint  of  the  party  aggrieved.  The  second 
and  third  sections,  except  the  colleges  within  the  universities,  and  certain 
municipal  corporations,  and  corporations  having  visitors  appointed  by  the 
founders,  from  the  operation  of  the  act.  The  fourth  section  preserves  the 
jurisdiction  of  the  ordinary.  The  fifth  forbids  any  party  interested  from 
being  named  as  a  commissioner.  The  sixth  saves  the  rights  of  purchasers 
for  a  valuable  consideration,  without  notice  or  fraud,  of  property  given  to 
a  charity,  from  the  jurisdiction  of  the  commissioners ;  but  authorizes  orders 
for  recompense  to  be  made  against  those  who  are  guilty  of  a  breach  of 
trust.  The  seventh  exempts  from  the  jurisdiction  of  the  commissioners, 
grants  made  to  the  sovereign  during  the  three  preceding  reigns.     The 

1  Baptist  Association  v.  Hart,  4  Wheat.  437,  476,  per  Jones,  Ch.     Executors  of 

39.  Burr    v.   Smith,   7  Vt.   241.     Vidal   v. 

*  Potter  v.  Chapin,  6  Paige,  640.  Girard's  Ex'rs,  2  How.  127.     Story's  Eq. 

*  Vidal  v.  Girard's  Ex'rs,  2  How.  196.  §  1136  etseq.     Kniskern  v.  The  Lutheran 
4  Id.     Williams  v.  Williams,  MS.,  court  Churches,   1  Sandf.  Ch.  R.  562,  where 

of  appeals,  per  Denio.     Porter's  case,  1    most  of  the  cases  are  col'ected. 
Co.  26.  McCwtee  v.  The  Orphan  Asylum, 


572  Trusts.  [Ch.  f<. 

eighth  and  ninth  sections  provide  for  certifying  the  acts  of  the  commis- 
sioners into  the  court  of  chancery,  and  for  their  execution  by  the  orders 
of  the  lord  chancellor.  The  tenth  and  last  sections  allow  parties  ag- 
grieved by  the  orders  of  the  commissioners  to  complain  to  the  lord  chan- 
cellor, who  is  authorized  to  annul,  alter  or  enlarge  the  decrees  of  the 
commissioners,  and  to  tax  costs  against  such  as  shall  complain  without 
cause.1 

The  structure  of  these  enactments  shows  that  they  had  reference  tc 
an  existing  system  ;  and  the  authorities  cited  under  the  preceding  head 
justify  the  opinion  expressed  by  the  learned  judge  who  delivered  the 
opinion  of  the  court  of  appeals  in  this  state,  in  Williams  v.  Williams,  that 
the  law  of  charities  was,  at  an  indefinite  but  early  period  in  English  judi- 
cial history,  engrafted  upon  the  common  law  ;  that  its  general  maxims 
were  derived  from  the  civil  law,  as  modified  in  the  later  periods  of  the 
empire  by  the  ecclesiastical  element  introduced  with  Christianity,  and 
that  the  statute  in  question  introduced  no  new  principles,  but  was  de- 
signed to  afford  a  new  and  less  dilatory  mode  of  establishing  charitable 
donations,  and  to  correct  other  abuses  in  relation  to  them.2 

Even  in  England,  at  the  present  day,  proceedings  to  establish  charities 
are  not,  as  Chief  Justice  Marshall  supposed,  in  The  Baptist  Association 
v.  Hart,  (supra,)  under  the  statute  of  Elizabeth.  An  able  writer  on  the 
subject,  whose  views  were  adopted  by  the  court  of  appeals  in  Williams 
v.  Williams,  (supra,)  says  :  "  Commissions  under  this  statute  (43  Eliz.) 
have  long  fallen  into  disuse,  partly  by  their  abuse,  and  partly  because 
they  were  found  insufficient  for  prosecuting  the  claims  in  many  instances  ; 
and  in  others,  because  they  were  extremely  unjust  towards  the  persons 
who  were  called  upon  to  account  for  property,  and  sought  to  be  charged, 
and  because  they  generally  ended  in  the  court  of  chancery.  The  general 
proceeding,  therefore,  in  the  case  of  charities,  has  been  for  many  years  past, 
by  the  old  mode  of  information,  in  the  name  of  the  attorney  general,  who 
brings  the  matter  in  question  formally  upon  record,  stating  the  claims  that 
were  made  upon  the  individuals  charged  with  a  breach  of  trust,  calling  upon 
them  to  make  a  defense,  and  putting  their  defense  upon  record,  and  then 
having  a  complete  issue  upon  the  record,  upon  which  the  judgment  of  the 
*ourtof  chancery  can  be  founded."3  The  whole  object  of  the  statute  of  Eliza- 
beth, says  the  learned  judge  in  Williams  v.  Williams,  (supra,)  seems  to 
have  been  to  provide  the  form  of  a  remedy  against  the  abuse  of  charities 

1  See  statute  at  length  in  Vin.  Abr.  tit.  s  Id.  and  per  Jones,  Ch.  in  McCartee  v. 

Charitable  Uses,  A.,  and  2  Stat,  at  Large,  Orphan  Asylum,  9  Cowen,  470  et  seq. 

708.     "Williams  v.  Williams,  opinion  of  s  Shelford,   278. 
Denio,  J.  supra. 


Ch.  7.]  Charities.  573 

That  form  has  long  since  been  abandoned,  and  relief  in  that  class  of 
cases  is  now  sought  under  the  ordinary  forms  of  justice  in  use  in  the 
court  of  chancery.  The  present  English  doctrine  of  charities  does  not 
therefore  depend  upon  the  statute,  so  far  as  the  course  of  proceeding  is 
concerned,  for  nothing  could  be  more  dissimilar  than  the  two  modes.  It 
cannot  be  said  that  the  existence  of  charitable  gifts  originated  in  the 
statute,  for  the  preamble  shows,  that  the  object  in  passing  it  was  to  reach 
gifts  already  in  existence,  to  redress  breaches  of  trust,  which  had  been 
committed  by  the  trustees,  under  donations  theretofore  made. 

Neither  the  statute  of  charitable  uses,  (43  Eliz.)  nor  the  act  of  9  Geo.  2, 
ch.  30,  restraining  gifts  to  charitable  uses,  under  certain  circumstances, 
was  ever  re-enacted  in  this  state ;  but  on  the  contrary,  the  legislature  for 
greater  caution,  at  an  early  period  of  the  revolutionary  Avar,  enacted  that 
from  and  after  the  first  day  of  May,  1788,  none  of  the  statutes  of  England, 
or  of  Great  Britain,  should  operate  or  be  considered  as  laws  of  this  state.1 
It  is  believed,  however,  that  neither  of  those  laws  was  ever  in  force  in 
this  state.2 

The  constitution  of  1777  adopted,  as  the  law  of  this  state,  amongst 
other  things,  such  parts  of  the  common  law  of  England,  and  of  the  stat- 
ute law  of  England  and  Great  Britain,  as  together  did  form  the  law  of 
the  colony  of  New- York  on  the  19th  April,  1775,  subject  to  such  altera- 
tions and  provisions  as  the  legislature  should,  from  time  to  time,  make 
concerning  the  same.3  And  the  same  feature  has  been  preserved  in  the 
constitutions  of  1821  and  1846.  Having  thus  adopted  the  common  law  of 
England,  so  far  as  it  was  applicable  to  our  circumstances,  and  conforma- 
ble to  our  institutions,  the  law  of  charitable  uses  is  in  force  here,  unless, 
first,  it  was  established  by  an  English  statute  which  has  been  abrogated  ; 
or  secondly,  unless  there  is  something  in  the  system  repugnant  to  our 
form  of  government ;  or  thirdly,  unless  it  can  be  shown,  by  the  history 
of  our  colonial  jurisprudence,  that  it  was  not  in  force  here  prior  to  the 

'2   Grecnl.   116,   L.  of  1788,  ch.  4G,  effect  are  Dutch  Church  v.  Mott,  7  Paige, 

I  37.  77  ;  Pobertson  v.  Bullions,  9  Barb.  98,  &9. 

a  A  contrary  opinion  is  expressed  by  In  Massachusetts,  it  has  been  held  that 

Duer,  J.  in  Avers  v.  The  Meth.  Church,  3  the  statute  of  43  Eliz.  ch.  4,  is  in  force  in 

Sandf.  S.  C.  R.  367.     But  I  think  the  fair  that  state.     Sanderson  v.  "White,  18  Pick, 

inference   from   the    opinion    of   Judge  328.     And  it  was  said  by  "Williams,  Ch. 

Denio,  in  Williams  v.  Williams,  is  accord-  J.,  in  Burr's  case,  to  have  been  in  force 

ing  to  the  text ;  and  the  law  is  thus  laid  in  Vermont. 

down  by  Jones,  Ch.  in  McCartee  v.  The  See  the  general  act  for  the  incorpora- 

Oryhan  Asylum, 9  Cowen,  452,  in  support  tion  of  Charitable  Societies,  Law  of  1848 

of  his  decree.     Bis  opinion,  in  this  re-  p.  447. 

svect,  wa:  not  disputed.    xVnd  to  the  same  3  Const.  1777,  §  35 


574  Trusts.  [Ch. 


■ 


revolution ;  or  lastly,  unless  it  has  been  abolished  by  the  Revised 
Statutes.1 

The  cases  already  cited  are  sufficient  to  show  that  the  law  of  charitable 
uses  was  a  part  of  the  common  law  of  England  long  previous  to  the  10th 
of  April,  1775  ;  and  there  was  no  legislation,  in  the  time  of  our  colonial 
subjection  to  the  mother  country,  affecting  the  question.  We  have  no 
reports  of  the  decisions  of  the  courts  prior  to  the  revolution  ;  and  can 
loarn  the  state  of  the  common  law.  at  that  period,  only  from  the  decisions 
of  the  British  courts,  from  the  records  of  the  colonial  courts,  and  from 
tradition. 

"We  are  not  without  evidence  of  undisputed  authenticity,  that  the 
English  doctrine  of  charities  was  considered  in  force  in  the  colon}7  of 
New- York  prior  to  the  revolution.  In  a  manuscript  volume  of  the 
orders  of  the  court  of  chancery,  under  the  colonial  government,  which  is 
preserved  in  the  office  of  the  clerk  of  the  court  of  appeals,  there  is  found 
a  record  of  the  proceedings  in  a  case  determined  in  that  court,  held  before 
the  governor  and  council,  in  the  year  1708,  which  bears  directl}r  upon  the 
question.  The  attorney  general  filed  an  information  against  William 
Cullin,  to  compel  the  payment  of  seventy-five  pounds,  bequeathed  by  one 
Nicholas  Cullin  for  the  benefit  of  the  poor  of  New- York  and  Albany, 
which  was  directed  to  be  distributed  by  certain  trustees  named  in  the 
will,  fifty  pounds  among  the  poor  people  in  New- York,  and  twenty-five 
pounds  to  those  in  Albany.  The  bill  of  complaint  alleged  that  the 
defendant,  under  a  power  of  attorney  from  the  executor  in  England,  bad 
possessed  himself  of  the  testator's  estate  in  the  colony,  "out  of  whicl 
according  to  equity  he  ought  to  have  paid  the  legacies  aforesaid,  foras- 
much as  the  said  legacies  were  given,  to  pious  and  charitable  uses''' 
"And  as  the  preservation  of  charitable  uses  is  of  great  public  benefii 
and  great  concern  to  our  lady  the  queen,  and  the  poor  aforesaid,  in  con- 
sideration whereof,"  the  attorney  general   pra}red   that  the  defendant 

.  .' it  answer  and  be  decreed  to  pay  the  amount,  &c.  The  defendant 
answered,  and  the  cause  being  heard  upon  the  pleadings,  a  decree  was 
made  that  he  should  pay  to  the  trustees  the  amount  of  the  legacies  to  be 
distributed  to  the  poor,  according  to  the  will  of  the  testator.2 

It  is  not  probable  that  many  cases  occurred  in  the  colony,  which  called 

1  Const.  1821,  art.  7,  §  13.    Const.  1846,  Meriv.  162.    Ayers  v.  The  Meth.  CLurch, 

art.  1,  §  17.     Williams  v.  Williams,  per  3  Sandf.  S.  C.  R.  368. 
Demo,  J.     Bogardus  v.  Trinity  Church,  4        2  Att'y  Gen.  v.  Cullin,  cited  by  J)cnio, 

Paige,  198.     Canal  Com.  v.  The  People,  J.  in  Williams  v.  Williams,  supra. 
5  Wend.  445.     Att'y  Gen.  v.  Stewart.  2 


Oh.  7.J  Charities.  575 

for  the  application  of  the  doctrine  of  charitable  use9.  The  case  of  The 
Att?y  Gen.  v.  Cullin,  (supra,)  is  exactly  in  point  to  show  the  existence  of 
the  doctrine  at  a  very  early  period.  We  have  traditional  evidence  that 
such  wa3  the  law  of  the  colony  at  the  time  of  the  revolution,  from  the 
opinions  of  Chancellors  Kent  and  Jones,  on  several  occasions,  both  of 
whom  were  on  the  stage  early  enough  to  be  familiar  with  the  opinions  of 
the  learned  judges  and  lawyers  who  flourished  in  the  colony  previous  to 
the  19th  of  April,  1775.  The  father  of  Chancellor  Jones  was  one  of  the 
most  eminent  lawyers  of  that  day,  and  one  of  the  commissioners  by  whom 
the  statutes  were  first  revised  after  the  close  of  the  revolutionary  war. 
There  is  decisive  evidence  that  both  those  learned  chancellors  treated 
the  law  of  charitable  uses  as  a  part  of  the  common  law  of  this  state.1 

There  is  nothing  in  the  law  relative  to  charitable  uses  which  is  repug- 
nant to  our  form  of  government.  The  administration  of  justice,  in  this 
or  any  other  country,  would  be  strangely  defective,  if  there  was  no  power 
to  uphold  the  disposition  of  property  for  charitable  uses.2  And  it  has 
been  settled  by  the  highest  court  of  the  state,  that  the  Eevised  Statutes 
have  not  abrogated  the  common  law  in  this  respect.3 

With  regard  to  the  persons  who  may  take  property  devised  or  be- 
queathed  for  charitable  uses,  there  is  a  distinction  arising  from  the  nature 
of  the  property,  whether  it  be  real  or  personal.  In  this  state,  and  proba- 
bly in  most  other  states,  corporations  are  excepted  out  of  the  statute  of 
wills.4  The  Revised  Statutes  now  in  force,  provide  that  every  estate  and 
interest  in  real  property,  descendible  to  heirs,  ma}r  be  devised;  and  such 
devise  may  be  made  to  every  person  capable  by  law  of  holding  real  estate  ; 
but  no  devise  to  a  corporation  shall  be  valid,  unless  such  corporation  be 
expressly  authorized  by  its  charter,  or  by  statute,  to  take  by  devise.5  It 
was  settled  by  the  court  of  errors,  in  McCartee  v.  The  Orphan  Asylum, 
(supra,)  that  the  former  statute  of  wills  did  not  authorize  a  devise  of 
real  estate  directly  to  a  corporation.  Had  the  devise  in  that  case  been 
to  the  executors  in  trust  for  the  corporation,  it  seems  to  have  been  con- 
ceded that  it  could  have  been  upheld  as  a  charitable  use.6  Chancellor 
tYal worth,  in  a  later  case,  but  one  arising  before  the  Revised  Statutes, 
neld  that  a  pecuniary  legacy  to  a  corporation,  payable  out  of  the  proceeds 
of  real  estate  which  the  executors  were  directed  to  sell,  was  valid, 
although  the  corporation  was  not  authorized  by  its  charter  to  take  real 

1  2  Kent's  Com.  285,  288   and  notes.  3  Williams  v.  Williams,  supra. 

lfcCartee  v.  Orphan  Asylum,  9  Cowen,  *  1  R.  1..  864.     2  R.  S.  57,  §  4. 

469  ct  seq.  per  Jones,  Oh.  in  giving  his  '  2  R.  S.  57,  §§  2,  3. 

opinion.  •  9  Cowen,  444,  &0. 

1  2  Kent's  Com.  285. 


r>7G  Trusts.  [CI    ; 

estate  by  devise.  And  he  intimated  a  doubt  whether  such  legacy  could 
under  the  provisions  of  the  Revised  Statutes,  be  supported;  and  he 
expressed  the  opinion,  that  a  devise  of  real  property  in  trust  for  a  corpo- 
ration was  void,  under  those  statutes,  unless  such  corporation  was  express- 
ly authorized  by  its  charter,  or  by  statute,  to  take  by  devise.1 

The  general  act  for  the  incorporation  of  benevolent,  charitable,  scientific 
and  missionary  societies,  passed  April  12,  1848,  (L.  p.  447,)  contains  this 
section:  "  §  6.  Any  corporation  formed  under  this  act,  shall  be  capable 
of  taking,  holding  or  receiving  any  property,  real  or  personal,  by  virtue 
of  any  devise  or  bequest  contained  in  any  last  will  or  testament  of  any 
person  whatsoever,  the  clear  annual  income  of  which  devise  or  bequest 
shall  not  exceed  the  sum  of  ten  thousand  dollars;  provided,  no  person 
leaving  a  wife  or  child,  or  parent,  shall  devise  or  bequeath  to  such  insti- 
tution or  corporation,  more  than  one  fourth  of  his  or  her  estate,  after  the 
payment  of  his  or  her  debts,  and  such  devise  or  bequest  shall  be  valid  to 
the  extent  of  such  one  fourth  ;  and  no  such  devise  or  bequest  shall  be  valid, 
in  any  will  which  shall  not  have  been  made  and  executed  at  least  two 
months  before  the  death  of  the  testator."  This  provision  was  made  to 
guard  against  improvident  testamentary  dispositions  of  property  by  pec. 
sons  in  extremis,  in  derogation  of  the  claims  of  near  relatives. 

It  has  been  asserted  by  a  learned  court  that  a  pious  use  cannot  be  sus- 
tained by  a  court  of  justice,  unless  in  a  country  where  the  truths  of  re- 
ligion have  been  settled  and  defined  by  law,  or  judges  have  a  discretional  y 
power  to  determine  and  declare  them.  "  Under  a  constitution,"  said  the 
learned  judge,  "  which  extends  the  same  protection  to  every  religion  and 
to  every  form  and  sect  of  religion,  which  establishes  none  and  gives  no 
preference  to  any,  there  is  no  possible  standard  by  which  the  validity  of 
a  use  as  pious  can  be  determined ;  there  are  no  possible  means  by  which 
judges  can  be  enabled  to  discriminate,  between  such  uses  as  tend  to  pro- 
mote the  best  interests  of  society  by  spreading  the  knowledge  and  incul- 
cating the  practice  of  true  religion,  and  those  which  can  have  no  other 
effect  than  to  foster  the  growth  of  pernicious  errors,  to  give  a  dangerous 
permanence  to  the  reveries  of  a  wild  fanaticism,  or  encourage  and  per- 
petuate the  observance  of  a  corrupt  and  degrading  superstition."2  The 
same  learned  court,  while  admitting  that  Christianity  is  in  a  modifieil 
sense  a  part  of  the  common  law,  so  far  at  least,  that  the  law  will  not  per- 
mit the  essential  truths  of  revealed  religion  to  be  ridiculed  and  reviled  ; 
in  other  words,  that  blasphemy  is  an  indictable  offense   at  common  law, 

1  The  Theological  Seminary  of  Auburn  'Andrew  v.  K  Y.  Bible  and  Praye* 
v.  Childs,  4  Paige,  419.  Book  Society.  4  Sandf.  S.  C.  R.  181. 


Cli.  T.J  Charities.  577 

denied  that  it  is  a  municipal  law  in  the  proper  sense  of  the  term.  And 
insisted  that,  if  in  such  sense  it  was  a  part  of  the  common  law,  every  per- 
son is  liable  to  be  punished  by  the  civil  poAver,  who  refuses  to  embrace  its 
doctrines  and  follow  its  principles.1 

This  reasoning,  though  entitled  to  high  respect  from  the  source  from 
which  it  emanated,  was  not  deemed  conclusive  by  the  court  of  appeals. 
On  the  contrary,  the  latter  court  held  that  the  consideration  that  a  rell 
gious  establishment  was  forbidden  by  our  constitution,  and  that  all  prefer- 
ences among  religious  denominations  were  prohibited,  did  not  require  the 
abolition  of  the  law  of  charity.  Although  Christianity  is  not  the  religion 
of  the  state,  considered  as  a  political  corporation,  it  is  nevertheless  closely 
interwoven  into  the  texture  of  society,  and  is  intimately  connected  with 
all  our  social  habits,  customs  and  modes  of  life.2 

Xor  does  the  upholding  a  charity  in  favor  of  a  particular  denomination 
of  christians,  affirm  the  truth  of  the  principles  by  which  that  sect  is  dis 
tinguished  from  others.  A  bequest  to  support  a  preacher  of  the  gospel, 
by  a  Baptist  elder,  does  not,  if  sustained  by  the  court,  affirm  that  the  no- 
tions of  christian  baptism,  entertained  by  that  denomination,  are  exclu- 
sively orthodox.  The  constitution  of  the  United  States,  as  amended, 
merely  forbids  congress  from  making  any  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof;3  and  the  constitution 
of  tins  state,  in  like  manner,  allows  the  free  exercise  and  enjoyment  of 
religious  profession  and  worship,  without  discrimination  or  preference,  to 
all  mankind  ;  and  forbids  that  any  person  should  be  rendered  incompe- 
tent as  a  witness,  on  account  of  his  opinions  on  matters  of  religion  ;  but 
provides  that  the  liberty  of  conscience  thereby  secured,  shall  not  be  so 
construed  as  to  excuse  acts  of  licentiousness,  or  justify  practices  inconsist- 
ent with  the  peace  or  safety  of  this  state.4  The  only  limit  to  toleration 
is  at  the  point  where  licentiousness,  or  practices  inconsistent  with  the 
peace  or  safety  of  the  state,  commence  ;  and  it  is  the  province  of  the 
courts  to  determine,  incidentally  indeed,  but  no  less  decisively,  when  that 
point  has  been  reached. 

The  upholding  of  a  charity  in  favor  of  a  religious  denomination  mcrelv 
affirms  that  its  doctrines  are  not  licentious  in  their  tendency,  and  that 
the  practice  of  them  is  not  inconsistent  with  the  peace  and  safety  of  tho 

:  Andrew  v.  N.  Y.  Bible  and  Prayer        3  Williams  v.  Williams,  supra. 
Book    Society,    -i   Sandf.   S.  C.  R.   18:2.        3  Amend,  to  U.  S.  Const,  art.  1. 
Avers  v.  The  Meth.  Episcopal  Church,  3         '  Const,  of  1846,  art.  1,  §  3. 
Sandf.  S.  C.  R.  351.    Yates  v.  Yates,  <J 
Barb.  389. 

Rq.  Jl-u  73 


578  Trusts.  [Cli.  7 

state  A  court  of  justice  is  as  capable  of  determining  these  questions, 
without  infringing  the  right  of  conscience,  as  it  is  to  pass  on  any  other 
question  of  right  secured  by  the  constitution.1  The  liberty  of  speech 
and  of  the  press  is  maintained  by  the  same  instrument  which  secures  the 
liberty  of  conscience.  The  party  who  exercises  the  right  is  made  re- 
sponsible for  its  abuse.  The  tribunal  that  fails  to  punish  a  publication 
as  libellous,  does  not  necessarily  approve  of  the  matters  complained  of  as 
injurious  ;  because,  though  the  libel  be  of  a  public  nature  and  the  sub- 
ject of  an  indictment,  the  punishment  of  it  may  not  be  called  for  by  any 
principles  of  justice  or  public  policy.  It  may  be  of  that  kind  that  it  may 
be  safely  tolerated,  while  reason  is  left  free  to  combat  it.  A  charity  in 
favor  of  a  sect,  whose  doctrines  tend  to  licentiousness,  or  lead  to  the  vio- 
lation of  the  laws  of  the  land,  cannot  be  upheld.  Donations,  for  example, 
to  aid  in  propagating  the  doctrines  of  Mahometanism,  or  Mormonism, 
could  not  be  supported,  because,  amongst  other  things,  they  countenance 
polygamy,  in  hostility  to  the  settled  policy  and  laws  of  the  land.  "  A 
trust  for  the  circulation  of  the  monstrous  fables  of  the  Talmud,  or  the 
gross  impostures  of  the  Koran,"'-  does  not,  it  is  believed,  stand  upon  the 
same  footing  as  a  trust  for  the  distribution  of  the  Book  of  Common 
Prayer  of  the  Protestant  Episcopal  Church.3  Though  the  support  of  thf. 
last  does  not  necessarily  imply  a  belief  in  all  the  tenets  of  that  church, 
it  does  affirm  that  its  doctrines  neither  lead  to  licentiousness  or  put  at 
hazard  the  peace  or  safety  of  the  state.  The  support  of  the  former  could 
not  be  justified  without  overruling  and  subverting  the  social  relations 
which  we  have  derived  from  Christianity,  and  repealing  our  statute  against 
a  plurality  of  wives. 

A  slight  glance  at  our  system  of  laws,  "will  show  how  deeply  they  are 
imbued  with  the  spirit  of  the  christian  religion.  Even  the  common  maxim, 
so  to  use  our  own  as  not  to  injure  another's  right,  is  of  a  higher  origin  than 
the  Roman  law.  The  recognition  of  the  sabbath,  the  mode  of  adminis- 
tering oaths,  the  punishment  of  the  crimes  of  bigamy,  of  adultery,  and  in 
some  cases,  of  fornication  ;  the  rules  of  descent  and  distribution  of  the 
property  of  intestates  ;  the  domestic  arrangement  of  families,  and  the 
liability  of  the  parents  and  of  the  children  of  adequate  ability  to  sup- 
port each  other ;  all  show  the  pervading  influence  of  Christianity  in 
shaping  our  institutions. 


Terrett  v.  Taylor,  9  Cranch,  43.  3  Id.  per  Duer,  J.     This  case  was  re- 

2  Andrew  v.  K  Y.  Bible  and  P.  B.  S.    versed  by  the  court  of  appeals,  in  Deo 
i  Sandf.  S.  C.  R.  184.  1853,  as  will  be  noticed  hereafter. 


Ch.  T.j  Charities.  579 

In  additon  to  these  features  in  our  legal  polity,  as  was  well  remarked 
by  the  learned  judge  in  Williams  v.  Williams,  the  provision  for  creating 
religious  corporations,  recognizes  the  duty  of  the  government  to  provide 
facilities  for  the  voluntary  establishment  of  public  worship.  A  legally 
organized  system  for  protecting  and  preserving  gifts  and  donations  in  aid 
of  christian  charity,  falls  within  the  same  principle  and  is  equally  unob- 
jectionable. The  establishment  of  corporations  for  colleges,  academies 
and  other  seminaries  of  learning,  belongs  to  the  same  principle.  Though 
these  incorporations  may  and  doubtless  do,  to  a  great  extent,  render  the 
doctrine  in  relation  to  public  charities  less  important,  they  nevertheless 
show  that  the  objects  sought  to  be  attained  by  the  doctrine,  are  highly 
regarded  by  our  people.  And  when  it  is  considered  that  we  find  in  the 
common  law  of  England,  which  we  have  to  a  limited  extent  adopted  by 
our  constitution,  certain  principles  already  established  respecting  convey- 
ances to  charity,  no  reason  is  perceived,  growing  out  of  the  absence  of  a 
state   religion,  for  holding  that  they  are  inapplicable  to  our  condition.1 

It  has  been  seen,  in  our  discussions  under  other  heads,  that  equity 
often  interferes  and  sets  aside  agreements,  the  execution  of  which  would 
be  contra  bonos  mores,  as  well  as  such  as  are  forbidden  by  statute.  Our 
courts  of  equity,  in  administering  this  branch  of  the  law,  have  never  felt 
embarrassed  by  the  fact  that  we  have  no  religion  established  by  law. 
They  have  been  able  to  find  a  standard,  by  which  to  determine  whether 
a  particular  transaction  was  against  public  morals,  by  a  reference  to  the 
general  sense  of  the  community.  The  enlightened  conscience  of  individ- 
uals constitutes  the  conscience  of  the  state.  We  live  in  a  christian,  and 
n  >t  a  pagan  land,  and  the  truths  of  Christianity  can  as  well  be  learnt 
from  the  original  sources  of  its  doctrines,  and  its  principles  as  well  obeyed, 
a?  if  both  were  prescribed  by  a  public  statute.  On  the  great  question 
ol  public  morals  and  christian  duty,  there  is  little  diversity  of  opinion, 
and  none  that  interferes  with  an  enlightened  administration  of  justice. 

The  objection  sometimes  raised  to  the  exercise  of  jurisdiction  over 
charities,  founded  on  the  difficulty  of  the  questions  they  involve,  proves 
too  much.  If  it  be  well  founded  in  this  case,  no  reason  is  perceived  why 
it  should  not  apply  to  all  cases  ;  the  consequence  of  which  would  be,  that 
every  complicated  case  would  be  left  without  redress. 

The  foregoing  observations  show  that  the  doctrine  of  charities,  in  this 
country,  is  in  substance  the  same  as  it  is  in  England,  in  that  class  Df 
caaes  in  which  it  can  be  administered  by  the  courts,  without  the  aid  of 

:  Williams  v.  Williams,  supra. 


580  Trusts.  [Ch.  7 

che  sign  manual  of  the  king.  If  the  gift  be  so  indefinite  that  it  cannot 
be  executed  by  the  court,  or  if  its  purpose  be  illegal  or  impossible,  the 
claim  of  the  personal  representatives  or  heirs  of  the  donor  must,  in  gene- 
ral, prevail  over  the  charity.  The  reason  is.  that  we  have  no  magistrate 
clothed  with  the  prerogatives  of  the  crown,  and  our  courts  of  justice  are 
intrusted  only  with  judicial  authority.  The  cases,  therefore,  which  in 
England  vest  the  right  in  the  king  as  parens  patriae,  cannot  be  executed 
here,  but  by  act  of  the  legislature.1  Whenever  any  thing  is  given  to 
charity  and  no  charity  appointed,  or  if  the  charity  which  is  appointed  be 
superstitious,  the  power  of  appointment,  in  England,  vests  in  the  king;'3 
and  with  us  such  legacies  would  be  ineffectual,  and  the  claim  of  the  heirs 
or  parties  in  distribution  would  prevail  over  the  charity,  unless,  indeed, 
the  legislature  should  interfere.  The  general  doctrine  was  stated  by  Lord 
Eldon,  on  one  occasion,  as  the  result  of  all  the  authorities,  which  he  fully 
reviewed,  that  where  there  is  a  general  indefinite  purpose,  not  fixing  itself 
upon  any  object,  the  disposition  is  in  the  king  by  sign  manual ;  but  where 
the  execution  is  to  be  by  trustee,  Avith  general  or  some  objects  pointed 
out,  there  the  court  will  take  the  administration  of  the  trust.3  The  latter 
and  not  the  former  class,  of  cases  is  applicable  to  our  condition,  and  alone 
forms  a  part  of  our  judicial  system  ;4  though  the  legislature  may  proba- 
bly interfere,  as  will  be  shown. 

It  is  a  general  principle,  which  has  already  been  adverted  to  in  this 
chapter,  that  equity  never  suffers  a  trust  to  fail  for  the  want  of  a  trustee. 
This  principle  is,  in  an  especial  manner,  applicable  to  charities.5  Indeed, 
it  is  not  charity,  within  the  meaning  of  the  law  of  charitable  uses,  to  give 
to  a  friend.  The  thing  given,  it  has  well  been  said,  becomes  a  charity, 
where  the  uncertainty  of  the  recipients  begins.6 

Where  gifts  or  devises  are  made  to  trustees  capable  of  taking  the  legal 
estate  in  trust,  for  pious  or  charitable  uses,  no  question  can  arise  as  to 
the  validity  of  the  trust  at  common  law,  as  a  pious  and  charitable  use, 
where  the  trust  is  definite  in  its  objects  ;  as  where  the  gift  or  devise  is  in 

1  "Williams  v.  'Williams,  supra.  Ayers  S.  0.  1  Yes.  jr.  464.  Ommarmey  v. 
v.  The  Meth.Epis.  Church,  3  Sandf.S.C.  Butcher,  1  Turn.  &  Russ.  260,  per  Sir 
R.  351.     Andrew  v.  ]ST.  Y.  Bible  and  P.    WTm.  Grant. 

]).  S.  4  id.  178.  *  Williams  v.  Williams, supra. 

2  2  Fonb.  Eq.  B.  2,  pt.  2,  ch.  1,  §  3.  5  McCartee  v.  Orph.  Asylum,  9  Cowei, 
Att'y  Gen.  v.  Siderfin,  1  Yern.  224.  Att'y  484,  per  Jones,  Ch.  Bartlett  v.  Nye,  4 
Gen.  v.  Guise,  2  id.  266.    Be  Costa  v.  Mete.  380. 

De  Pas,  Ambl.  228.  Mills  v.  Freeman,  1  6  Fontain  v.  Ravenel,  3  Am.  L.  Reg. 
Meriv  55.     Ambl.  712,  269,  per  McLean,  J. 

'  M.^jrHdtfc  v.  Thackwell,  7  Yes.  36; 


Ch.  7.J  Charities.  581 

trust  for  the  support  of  the  poor  of  a  town  ;  or  for  the  benefit  of  an  unin 
corporated  missionary  society ;  or  for  the  support  of  the  minister  of  a 
church  and  his  successors  in  office  ;  or  for  the  maintenance  of  a  school ; 
or  fur  the  erection  of  a  hospital.' 

Thus,  a  conveyance  made  to  certain  individuals  of  the  site  of  the  Dutch 
church  in  Garden  street,  in  the  city  of  New- York,  in  1691.  in  trust  for 
the  use  of  the  ministers,  elders  and  deacons  of  such  church  and  their 
successors,  and  to  have  a  house  of  public  worship  erected  thereon,  and  for 
no  other  use  whatever,  was  held  to  be  a  valid  conveyance  at  the  common 
law  to  a  charitable  and  pious  use  ;  and  the  court  of  chancery  had  original 
jurisdiction  to  enforce  the  performance  of  the  trust.2  No  violation  of  the 
trust  upon  which  the  property  was  conveyed,  therefore,  can  have  the  effect 
to  revest  either  the  legal  or  equitable  title  to  the  property  in  the  heirs 
of  the  original  grantor.  And  the  court  will  presume,  after  a  great  lapse 
of  time,  and  the  subsequent  incorporation  of  the  church,  a  conveyance  from 
the  original  trustees  or  their  heirs  to  the  corporation.3  So  a  pecuniary  leg- 
acy to  a  town,  for  the  purpose  of  erecting  a  town  house  for  transacting  towr 
business,  was  held  by  Chancellor  Kent  to  be  valid  as  a  charitable  bequest 
The  object  was  said  to  be  for  a  general  public  use,  as  convenient  for  the  poc* 
as  the  rich.4  A  dedication  of  real  or  personal  property  depends  upon  the 
same  principle  ;  and  the  court  of  chancery  will  sustain  a  gift  or  bequest 
or  dedication  of  personal  property  to  public  or  charitable  uses,  if  the  same 
is  not  inconsistent  with  local  law  or  public  policy,  and  where  the  object 
of  such  gift  or  dedication  is  specific  and  capable  of  being  carried  into 
effect  according  to  the  intention  of  the  donor.5  Thus,  where  the  inhabitants 
of  a  village,  previous  to  the  act  for  the  organization  of  school  districts,  con- 
tributed by  voluntary  donations  to  a  fund  for  the  erection  of  a  school  house 
for  the  use  of  the  neighborhood,  and  the  school  house  was  subsequently 
destroyed  by  the  British  troops,  and  congress  afterwards  passed  an  act 
to  remunerate  those  whose  property  was  thus  destroyed ;  and  previous  to 
the  passage  of  such  act  the  village  where  such  school  house  had  been 
erected  was  incorporated  into  a  school  district,  it  was  held  that  the  fund 
afterwards  received  under  that  act  belonged  to  such  school  district,  and 
not  to  the  original  contributors  to  the  fund.  And  the  school  district 
having  been  divided  into  two  districts  before  the  receipt  of  the  money, 
from  the  United  States  ;  it  was  held,  also,  that  the  fund  belonged  to  both 


1  Bac.  Abr.  tit.  Charitable  Use.*.  E.  Att'y  Gen.  v.  Clark,  Ambl.  422.    Jonei 

0  Dutch  Church  v.  Mott,  7  Paige,  77.  v.  "Williams,  id.  651. 

3  Id.  6  Potter  v.  Chapiu,  6  Paige,  639. 

4  CoggeshaU  v.  Pelton,  7  J.  Ch.  R.  292. 


582  Trusts.  fCb.  7 

districts  in  proportion  to  the  taxable  property  in  each  at  the  time  of  the 
division.1 

Where  the  beneficial  use  of  property  cannot  take  effect  as  a  legal 
estate  in  the  cestui  que  use,  it  will  in  some  cases  take  effect  as  a 
trust,  in  the  same  manner  as  if  the  statute  of  uses  had  not  passed  :  where 
if  can  take  effect  as  a  trust  consistently  with  the  rules  of  law.  On  this 
principle,  though  an  unincorporated  body  cannot  take  the  legal  estate  in 
premises  as  an  executed  use  under  the  statute  of  uses,  they  may  never- 
theless take  a  beneficial  interest  in  the  property  as  a  charitable  use.2 

Thus,  where  the  owner  of  a  lot  of  land,  in  April,  1790,  in  consideration 
of  one  hundred  pounds,  granted,  bargained  and  sold  the  same  unto  Yates. 
Vrooman  and  six  other  persons  named  therein,  and  to  their  heirs  and 
assigns  forever ;  to  have  and  to  hold  the  same  to  the  grantees  and  their 
heirs  and  assigns  forever,  upon  trust,  nevertheless  to  the  only  proper  use, 
benefit  and  behoof  of  Van  Ityck  and  twelve  other  persons  named  in  the 
indenture,  members  of  St.  George's  Lodge  of  free  masons  and  all  others  who 
then  were  or  thereafter  might  become  members  of  such  lodge,  their  survi- 
vors and  successors  forever,  and  for  no  other  use,  intent  or  purpose  what- 
soever. All  the  parties  of  the  second  part  named  in  the  deed,  except  Yates, 
and  the  whole  thirteen  persons  specified  by  name  therein  as  part  of  the 
then  members  of  the  lodge,  having  died,  and  the  lot  having  been  taken  by  a 
railroad  company,  for  the  use  of  their  road,  the  damages  were  assessed,  and 
the  amount  paid  over  to  Yates,  as  the  surviving  grantee  of  the  deed.  Upon 
a  bill  filed  by  the  heirs  of  the  grantor  in  the  deed  against  Yates,  to  recover 
from  him  the  moneys  thus  received  for  the  lot  from  the  railroad  company,  it 
was  held  that  it  was  not  the  intention  of  the  parties  to  the  deed  to  vest 
either  the  whole  legal  title,  or  the  whole  beneficial  interest  in  the  prem- 
ises, in  the  thirteen  persons  therein  specifically  named  as  members  of  the 
lodge,  during  the  terms  of  their  respective  lives,  for  their  benefit,  and  the 
benefit  of  the  survivor  of  them  exclusively  ;  but  that  it  was  the  intention 
of  the  parties  that  it  should  operate  as  a  conveyance  of  the  legal  title  of 
the  whole  fee  of  the  lot,  not  for  the  benefit  of  the  thirteen  individuals 
named,  for  life,  with  a  resulting  trust  to  the  grantor,  but  for  the  aggre 
gate  body  of  the  members  who  then  constituted,  or  who  should  thereafter 
constitute,  the  St.  George's  Lodge.3 

Where  the  gifts  and  devises  for  pious  or  charitable  uses  are  not  madt 
to  persons  capaple  of  taking  the  legal  estate,  when  made  directly  to  a 
non-existing  corporation  ;  or  to  an  unincorporated  association,  or  to  the 

1  Potter  v.  Cbapin,  6  Paige,  630.  242,  affirmed  by  court  of  appeal",  Deo 

1  Vander  Volgen  v.  Yates,  3   Paige,    1853. 

8  Id. 


Ch.  f.]  Charities.  583 

poor  inhabitants  of  a  town  ;  or  to  the  church  wardens  of  a  parish  not  in 
corporated  &c..  they  may  be  sustained  at  common  law  as  pious  or  chari- 
table uses,  if  the  objects  of  the  charity  are  denned  or  designated,  and  can 
be  carried  into  effect  according  to  the  intent  of  the  donor.  This  rule  ap 
plies  also  to  dedications.1 

The  questions  with  respect  to  the  validity  of  a  charity  arise  in  a  vari- 
ety of  ways.  Sometimes  on  a  bill  by  the  attorney  general  to  establish 
the  charity,  and  sometimes  by  the  heirs  at  law  or  parties  entitled  to  dis- 
tribution of  the  estate  of  the  donor  to  set  aside  the  will,  legacy  or  devise, 
in  their  favor ;  and  sometimes  by  parties  claiming  the  legacy  in  trust  for 
the  purposes  of  the  will.  In  the  late  case  before  the  supreme  court  of  the 
United  States,  the  bill  was  filed  by  the  heirs  at  law  to  set  aside  the  will 
of  the  testator,  for  the  invalidity  of  its  provisions.  The  testator,  a  citizen 
of  Louisiana,  had  made  a  will,  in  which,  after  bequeathing  certain  legacies, 
which  were  not  in  controversy  in  that  suit,  bequeathed  all  the  rest,  resi- 
due and  remainder  of  his  property  to  the  corporations  of  the  cities  of 
New-Orleans  and  Baltimore  forever,  one  half  to  each  for  the  education  of 
the  poor  in  those  cities ;  it  was  held  that  those  cities  were  corporations, 
having  a  right  to  take  the  legacies  for  the  purposes  contemplated  by  the 
will.2 

In  like  manner  it  was  held  that  the  corporation  of  Philadelphia  had 
power,  under  its  charter,  to  take  real  and  personal  estate  by  deed,  and  also 
by  devise ;  and  that  where  a  corporation  possesses  this  power,  it  may 
also  take  and  hold  property  in  trust,  in  the  same  manner  and  to  the  same 
extent  that  a  private  person  may  do ;  if  the  trust  be  repugnant  to  or  in- 
consistent with  the  proper  purpose  for  which  the  corporation  was  created, 
it  may  not  be  compellable  to  execute  it,  and  a  court  of  equity  will  appoint 
a  new  trustee  to  enforce  and  perfect  the  objects  of  the  trust.  Neither  is 
there,  it  seems,  any  positive  objection  in  point  of  law  to  a  corporation 
taking  property  upon  a  trust  not  strictly  within  the  scope  of  the  direct 
purposes  of  its  institution,  but  collateral  to  them.3  This  perhaps  would 
not  be  admissible  in  New- York,  since  the  Revised  Statutes.  The  trusts 
created  by  the  will  of  the  late  Stephen  Girard  were  upheld  upon  the  gen- 

1  Baptist  Church  of  Hartford  v. Wether-  beck  v.  Am.  Bible  Society,  2  Sandf.  Cli. 

ell,  3  Paige,  296.     Potter  v.  Chapin,  6  id.  K.  188.     Shotwell  v.  Mott,  2  id.4G.    Bac. 

639.     City  of  Cincinnati  v.  White,  6  Pet.  Abr.  tit.  Char.  Uses,  E. 

431.     Beaty  v.  Kerts,  2  id.  506.     Banks  2  McDonouglfs  Executors  v.  Murdock, 

v.  Phelan,  4  Barb.  80.     King  v.  Wood-  15  How.  307. 

hull,  3  Edw.  Ch.  R.  79.     Wright  v.  Meth.  3  Vidal  v.  Executors  of  Girard,  2  How 

E|>is.  Church,  1  Hon".  Ch.  K.  202.    Horn-  127. 


584  Trusts.  [Ch.  T. 

eral  doctrine  of  charitable  uses.  And  it  was  said  that  donations  for  the 
establishment  of  colleges,  schools,  and  seminaries  of  learning,  and  espe- 
ciall}r  such  as  are  for  the  education  of  orphans  and  poor  scholars,  are 
charities,  in  the  sense  of  the  common  law.  The  doctrine  does  not  seem, 
in  Pennsylvania,  to  rest  on  the  statute  43  Eliz.  ch.  4,  which  has  indeed 
'icen  recognized  by  the  courts  of  that  state,  but  not  only  these  but  the 
more  extensive  range  of  charitable  uses  which  chancery  supported  before 
that  statute,  and  beyond  it,  are  recognized  and  confirmed.1 

In  the  case  of  "Williams  v.  Williams,  which  has  already  been  frequently 
cited  under  this  head,  the  questions  arose,  under  a  bill  filed  by  the  resid- 
uary legatees  under  the  will  of  Nathaniel  Potter,  the  testator,  to  set  aside 
two  legacies,  one  in  favor  of  the  Presbyterian  church  and  congregation 
of  the  village  of  Huntington,  and  the  other  in  favor  of  trustees  of  a  fund 
for  the  gratuitous  education  of  certain  poor  children.  The  first  legacy 
was  given  in  these  words ;  "  I  give  and  bequeath  the  trustees  of  the 
Presbyterian  church  and  congregation  in  the  village  of  Huntington,  and 
their  successors,  in  trust  for  the  support  of  a  minister  of  the  said  church 
as  now  constituted,  the  sum  of  six  thousand  dollars,  to  be  managed  in 
manner  following,  to  wit :  the  principal  to  be  loaned,  and  one  half  of  the 
interest  annually  accruing  to  be  added  to  the  principal  until  the  fund 
shall  amount  to  ten  thousand  dollars.  The  other  half  of  said  interest  to 
be  applied  to  the  support  of  a  minister  in  such  church ;  and  as  soon  as 
the  whole  fund,  by  the  addition  of  the  interest  as  aforesaid,  shall  amount 
to  the  sum  of  ten  thousand  dollars,  the  whole  interest  annually  accruing, 
to  be  annually  applied  to  the  support  of  the  gospel  minister  in  said 
church  as  now  constituted."  It  was  provided  that  a  pew,  free  of  rent,  in 
the  church,  should  be  reserved  for  the  use  of  that  part  of  the  testator's 
family  which  might  reside  in  Huntington.  No  part  of  the  fund  was  to  be 
applied  to  building  or  repairing  the  church ;  and  any  diversion  of  the 
fund  from  the  purposes  for  which  it  was  given,  was  to  operate  as  a  for 
feiture  in  favor  of  the  residuary  legatees. 

The  other  gift  was  in  the  following  language :  "  With  a  desire  to  rais-? 
the  standard  of  intellectual  and  moral  improvement  among  the  poor,  1 
constitute  and  appoint  Zophar  B.  Oakley,  John  Wood  and  Charles  Stur- 
ges  of  the  village  of  Huntington,  and  their  successors,  to  be  appointed 
in  the  manner  hereinafter  authorized,  a  board  of  trustees  of  a  fund  which 
I  hereby  constitute  for  the  exclusive  education  of  the  children  of  the 
poor ;  and  in  order  to  maintain  the  number  of  the  said  trustees  in  perpe- 
tuity, I  hereby  authorize  the  surviving  or  remaining  trustees  to  fill  up 

1  Yidal  v.  Executors  of  Girard. 


i  h.  7.]  Charities.  58.} 

&nv  vacancy  as  often  as  it  shall  occur  by  death,  resignation,  or  removal 
from  the  village,  of  any  one  of  the  trustees,  by  the  choice  of  another,  to 
be  entered  upon  the  minutes  of  their  proceedings.  I  give  and  bequeath  to 
the  above  named  trustees  and  their  successors,  appointed  as  aforesaid, 
the  sum  of  six  thousand  dollars,  in  trust,  for  a  perpetual  fund  for  the 
education  of  the  children  of  the  poor,  who  shall  be  educated  in  the 
academy  in  the  village  of  Huntington ;  or  in  case  of  the  destruction  of 
the  academy  by  fire  or  otherwise,  then  in  the  school  house  next  west  of 
the  academy,  until  it  shall  be  rebuilt.  No  part  of  this  fund  ever  to  be 
appropriated  to  the  erection  or  repair  of  buildings. 

"  It  is  my  will  that  this  fund  shall  be  managed  in  manner  following,  to 
wit :  the  principal  to  be  loaned  on  bond,  secured  by  mortgage  of  lands 
of  twice  the  value  of  the  sum  loaned,  and  one  half  of  the  interest  annually 
accruing  to  be  added  to  the  principal,  until  the  whole  fund  amounts  to 
the  sum  of  ten  thousand  dollars.  The  other  half  of  the  interest  to  be 
appropriated  and  expended  in  the  education  of  the  children  of  the  poor ; 
and  when  the  said  fund,  by  the  addition  of  the  interest  as  aforesaid,  shall 
amount  to  the  said  sum  of  ten  thousand  dollars,  then  it  is  my  will  that 
the  whole  interest  of  the  said  fund  shall  be  annually  appropriated  and 
expended  in  the  education  of  the  children  of  the  poor,  in  the  academy,  in 
the  village  of  Huntington. " 

The  instruction  was  to  be  limited  to  a  good  English  education,  which 
was  to  be  extended  "to  the  poor  of  every  description,  Avithout  discrimi- 
nation of  denomination  or  complexion."  The  children  to  be  educated 
Avere  to  be  such  "  whose  parent's  names  were  not  on  the  tax  list ;  and  if 
the  interest  annually  accruing  shall  be  more  than  sufficient  for  this  pur- 
pose, in  such  case  the  surplus  shall  be  expended  in  the  education  of  chil- 
dren  whose  parents  stand  lowest  on  the  tax  list,  until  the  whole  is 
absorbed.*5 

There  were  some  other  provisions  relating  to  the  management  of  the 
fund  ;  and  the  fund  was  to  be  forfeited  to  the  residuary  legatees  in  case  of  a 
diversion  from  the  objects  for  which  it  was  given.  There  was  then  the 
following  clause:  "If  the  powers  of  the  board  of  trustees  herein  consti- 
tuted shall  prove  insufficient  for  the  execution  of  the  duties  of  the  trust, 
it  is  my  will  that  they  shall  make  application  for  a  special  act  of  incorpo- 
ration, to  enable  them  to  give  complete  effect  to  my  intentions  as  above 
stated."  There  were  other  provisions  in  the  will  not  affecting  the  ques- 
tions raised  on  the  argument.  It  was  admitted  by  the  pleadings  that 
the  Presbyterian  church  in  Huntington  had  been  incorporated  as  a 
religious  society,  by  the  name  mentioned  in  the  will,  under  the  act  pro- 

Kq.  J"'H  7-1 


586  Trusts.  |Ch.  7. 

viding  for  religious  incorporations,  and  that  the  personal  estate  of  the 
testator  was  sufficient  to  pay  the  legacies,  if  they  should  be  held  to  be 
valid. 

The  complainants  insisted  that  the  two  legacies  were  void,  on  accouni 
of  a  perpetual  suspension  of  the  power  of  alienation  contrary  to  law,  and 
of  the  alleged  illegal  trusts  for  accumulation ;  and  they  prayed  for  a 
decree  that  the  rights  of  the  residuary  legatees  to  the  moneys  so 
attempted  to  be  bequeathed,  might  be  settled  and  declared.  The  corpora- 
tion of  the  church  in  Huntington,  and  the  three  trustees  in  Hunting- 
ton, claimed  the  legacies  as  valid  dispositions  of  property.  The  execu- 
tors admitted  the  facts,  and  submitted  themselves  to  the  judgment  of  the 
court. 

The  cause  having  been  heard  in  December,  1844,  before  Ruggles, 
V.  Chancellor  of  the  second  circuit,  a  decree  was  made,  reciting  that  it 
appeared  to  the  court  that  the  two  several  legacies  were  valid,  and  dis- 
missing the  bill  without  costs.  An  appeal  was  taken  to  the  chancellor, 
which,  by  virtue  of  the  constitution  of  184G,  and  the  judiciary  act  of 
1847,  was  transferred  to  the  supreme  court,  and  having  been  argued  m 
that  court  at  a  general  term  in  the  second  district  in  May,  1850,  the 
decree  of  the  vice  chancellor  was  reversed  and  the  legacies  were  declared 
to  be  void.  An  appeal  was  then  taken  by  the  defendants  in  the  original 
action  to  the  court  of  appeals,  where  the  judgment  of  the  supreme  court 
was  reversed  and  the  decree  of  the  vice  chancellor  was  affirmed.1 

As  both  the  legacies  in  this  case  were  of  personal  property  only,  it 
was  unnecessary  to  decide  whether  a  devise  of  real  estate  for  the  same 
purposes  would  have  been  upheld. 

The  first  legacy  being  to  an  incorporation,  having  power  by  law  to 
hold  property,  for  the  general  purposes  contemplated  by  the  testator  in 
that  bequest,  was  held  to  be  yalid.  It  was  thought  not  to  be  essential  to 
the  validity  of  such  a  bequest,  that  it  should  be  given  generally  for  all 
the  purposes  for  which  it  might  be  legally  used,  or  for  any  to  which  the 
trustees  might  see  fit  to  devote  it.  It  was  enough  that  the  legacy  fell 
within  the  general  objects  for  which  religious  incorporations  are  created, 
and  did  not  exceed  the  amount  of  property  which  this  corporation  was 
authorized  to  hold.  It  was  remarked  that  a  religious  corporation,  under 
the  statute,  was  competent  to  take  a  bequest  limited  to  the  erection  or 
repairing  of  a  church,  or  parsonage,  the  purchase  of  a  glebe  or  church 
yard,  for  providing  sacred  music,  fuel  or  lights,  for  the  purchase  of  a 
church  library  and  the  support  of  a  sabbath  school.2     Such  a  corporation 

1  Williams  v.  "Williams,  supra.  2  Id.     In  matter  of  IIow,  1  Paige,  21 1. 


Oh  7.J  Charities.  58". 

mav  take  property  in  trust  for  purposes  which  it  is  lawful  for  it  to  exe- 
cute, if  the  pi*operty  were  acquired  by  itself. 

It  was  held  further,  that  this  legacy  did  not  infringe  the  provisions  of 
the  Revised  Statutes  relative  to  perpetuities  or  expectant  estates.1  And 
it  was  said  that  those  provisions  did  not  affect  conveyances  or  testamen- 
tary gifts  to  religious  or  charitable  institutions. 

With  respect  to  the  second  legacy  above  mentioned,  it  was  conceded  by 
the  learned  judge  who  delivered  the  judgment  of  the  court  of  appeals, 
that  it  could  not  be  sustained  unless  by  force  of  that  peculiar  system  of 
(aw,  known  in  England  under  the  name  of  the  law  of  charitable  uses. 
After  showing  that  the  Revised  Statutes  had  not  abrogated  that  doctrine, 
and  that  the  provisions  of  those  statutes  as  to  perpetuities  were  inappli- 
cable to  such  a  case,  the  court  decided  that  the  law  of  charitable  uses,  as 
it  existed  in  England  at  the  time  of  the  revolution,  and  the  jurisdiction 
of  the  court  of  chancery  over  those  subjects,  were  the  law  of  this  state  on 
the  adoption  of  the  constitution  of  1777;  that  the  law  has  not  been  re- 
pealed, and  the  existing  courts  of  this  state  having  equity  jurisdiction  are 
bound  to  admrnister  that  law.  It  was  accordingly  held  that  both  the 
legacies  were  valid  in  law. 

In  Robertson  v.  Bullions,2  the  question  arose  upon  an  original  bill  filed 
by  a  minority  of  the  trustees  of  a  religious  corporation,  together  with  a 
minority  of  the  society  known  as  the  Associate  Congregation  of  Cam- 
bridge adhering  to  the  principles  of  the  Associate  Synod  of  North  America, 
against  the  defendant  Bullions,  who  till  his  deposition  and  excommunica- 
tion had  been  the  settled  pastor  of  said  society,  and  a  majority  of  the 
trustees  and  congregation,  by  whom  he  was  still  retained  as  pastor,  not- 
withstanding his  deposition ;  and  the  general  object  of  the  bill  was  to 
restrain  the  trustees  from  applying  the  temporalities  of  the  society  to  the 
support  of  a  minister  who  had  been  deposed  from  the  ministry  by  the 
proper  ecclesiastical  tribunal  and  who  was  still  under  sentence  of  depo- 
sition. It  was  charged  in  the  bill  and  admitted  in  the  answer,  "  that  the 
property  of  the  congregation  was  held  by  the  trustees  for  the  sole  pur- 
pose of  being  devoted  and  appropriated  to  the  support  and  maintenance 
of  the  gospel,  according  to  the  faith  and  practice,  discipline  and  govern- 
ment of  the  Associate  Church  of  North  America ;  according  to  which 
principles,  no  minister  under  sentence  of  excommunication  can  be  permit- 
ted to  occupy  the  pulpit,  or  administer  divine  ordinances  in  said  church 
or  congregation."     The  vice  chancellor  of  the  fourth  circuit,  to  whom  the 

1  1  R.  S.  773  §  1.  Kane  v.  Gott,  24  a  9  Barb.  65;  affirmed  on  appeal,  1  Kern. 
Wend.  C62.  243. 


588  Trusts.  [Ch.  7, 

eause  was  referred  by  the  chancellor,  decided,  amongst  other  things,  that 
the  appropriation  of  the  property  of  the  congregation  by  the  defendants, 
for  the  support  of  the  deposed  and  excommunicated  minister,  was  an  un- 
lawful diversion  of  the  property  from  the  purposes  and  objects  of  the 
trust,  a  violation  of  their  duty  as  trustees,  and  an  abuse  of  the  power 
confided  to  them.  This  part  of  the  decision  of  the  vice  chancellor  was  in 
substance  affirmed  on  appeal  by  the  supreme  court,  and  it  was  not  dis- 
turbed by  the  court  of  appeals ;  the  decree  in  this  respect  having  been 
acquiesced  in  by  the  defendants.1 

In  Shotwell  v.  Mott,2  the  questions  arose  on  a  bill  filed  by  the  sole  act 
ing  executor  of  the  last  will  and  testament  of  Nathaniel  Smith  for  a  con 
struction  of  his  will,  and  for  directions  as  to  the  disposal  of  the  residue  of 
his  estate.  The  testator  had  amongst  other  things  directed  his  executors 
to  sell  his  lands  and  to  distribute  the  proceeds  amongst  various  persons, 
together  with  sundry  charitable  institutions.  It  was  held  by  the  assist- 
ant vice  chancellor,  that  there  was  a  conversion  of  the  real  estate,  and 
that  the  gifts  were  to  be  treated  as  legacies.  And  it  was  moreover  held, 
that  if  they  were  to  be  deemed  land,  they  were  nevertheless  valid,  be- 
cause the  Revised  Statutes,  relative  to  uses  and  trusts,  do  not  apply  to 
charitable  uses.  So,  in  the  same  case,  a  bequest  for  the  use  of  the  poor 
of  the  town,  and  one  to  an  unincorporated  religious  association  for  the  use 
of  its  poor  ministers,  were  held  not  to  be  within  the  provisions  of  the  Re- 
vised Statutes  against  perpetuities  ;  and  this  doctrine  was  approved  by 
the  learned  judge,  who  gave  the  opinion  of  the  court  of  appeals  in  Wil- 
liams v.  Williams,  (supra.)  So,  in  the  same  case,  a  bequest  for  the  ben- 
efit of  poor  ministers,  of  a  specified  religious  denomination,  was  held  to  be 
valid,  though  the  will  did  not  appoint  any  trustee  of  the  fund.  It  was 
said  to  be  competent  for  the  testator  to  empower  the  executors  and  trus- 
tees of  his  will  to  designate  the  first  trustees  of  such  fund.  And  if  it 
were  otherwise,  the  trust  would  remain  and  the  court  would  appoint  the 
trustees.  So,  a  bequest  for  the  ministers  of  the  New-York  Yearly  Meet- 
ins  of  Friends  called  orthodox,  who  are  in  limited  and  straitened  circum- 
stances,  was  held  not  to  be  too  vague,  or  uncertain,  or  too  indefinite  in  its 
objects.3  So  of  a  bequest  for  the  relief  of  such  indigent  residents  of  the 
town  of  Flushing,  as  the  trustee  or  trustees  of  the  town  for  the  time  be- 
'mjr  should  select.4 


'  Robertson  v.  Bullions,  9  Barb.   65  ;  Att'y  Gen.  v.  Shore,  7  Sim.  290,  note.   11 

6.  C.  1  Kern.  243.  id.  592.     9  CI.  &  Fin.  355. 

8  2  Sandf.  Ch.  R.  46.  4  Coggeshal]  v.  Pelton,  7  J.  Cb.  R.  &92. 

*  Shotwell  v.  Mott,  2  Sandf.  Ch.  R.  46.  Potter  v.  Chaj.in,  6  Paige,  639. 


Ch.  7  ]  Charities.  589 

In  another  case,  which  underwent  great  discussion,  and  which  passed 
through  all  the  higher  courts  of  the  state,1  Gardiner,  president  of  the  sen- 
ate, in  giving  what  appears  to  be  the  prevailing  opinion  of  the  court  of 
errors,  deduced  from  the  cases  the  following  general  propositions  on  the 
subject.  1.  That  in  trusts  for  charitable  or  pious  uses,  the  intention  of 
the  donor  is  to  govern.  2.  That  in  ascertaining  that  intention,  the  lan- 
guage of  the  trust,  if  clear  and  explicit,  is  conclusive  evidence  of  the  in- 
tention. 3.  That  where  the  language  is  ambiguous  or  equivocal,  resort 
may  be  had  to  extrinsic  evidence,  not  for  the  purpose  of  ascertaining  the 
intention  of  the  donor,  independent  of  the  deed  ;  but  for  the  purpose  of 
determining  the  meaning  and  application  of  the  terms  used  by  him.  4.  As 
a  corollary  from  the  above  propositions,  that  general  terms  are  to  be  con- 
strued generally,  unless  the  circumstances  under  which  the  trust  was 
made,  furnish  decisive  evidence  that  they  were  used  in  a  limited  or  spe- 
cial sense. 

In  the  application  of  the  foregoing  principles,  it  was  shown  that  where 
property  is  conveyed  to  a  religious  corporation,  (or  to  a  religious  society 
which  afterwards  becomes  incorporated.)  to  promote  the  teaching  of  par- 
ticular religious  doctrines,  and  the  funds  are  attempted  to  be  diverted  tc 
the  support  of  different  doctrines,  it  is  the  duty  of  the  court  of  chancery. 
under  its  general  jurisdiction  over  trusts,  to  interpose  for  the  purpose  of 
carrying  the  trust  into  execution  according  to  the  intention  of  the  donor. 

It  is  a  question  of  much  importance  in  the  law  of  charitable  uses, 
whether  property  devoted  to  a  particular  charity  by  the  donor  may  be 
diverted  to  other  objects,  if  a  majority  of  those  for  whose  use  it  was  accu- 
mulated or  given,  shall  concur  in  such  diversion.  This  subject  has  been 
discussed  in  the  courts  of  this  state,  and  received  a  decision  in  conformity 
to  the  doctrines  of  the  common  law.  Accordingly  it  has  been  hell,  that 
it  is  not  a  defense  to  a  suit,  brought  to  enforce  a  trust,  that  the  deviation 
from  the  faith  and  doctrine,  to  which  the  property  was  devoted  by  the 
donor,  is  sanctioned  by  a  majority  of  the  church  or  congregation,  who, 
through  trustees  chosen  by  such  majority,  are  administering  the  trust  ac- 
cording to  their  views.  And  it  was  said  that,  in  a  case  of  clear  violation 
of  a  well  defined  trust  of  this  character,  the  court  would  be  bound  to  in- 
terfere upon  the  complaint  of  a  minority  against  a  majority  of  the  con- 
gregation.2    If,  indeed,  all  the  congregation  concur  in  the  misapplication 

"Miller  v.  Gable,  2  Denio,  492,  5-11;  1  Sandf.  Ch.  R.  439.    Field  v.  Field,  9 

S.  C.  10  Paige,  027.   Opinion  of  Assistant  Wend.   394.     Robertson  v.    Bullions,    9 

V.  Oh.,  2  Denio,  510.  Barb.  132,  per  Hand,  J.     Att'y  Gen.  v. 

-  Miller  v.  Gable,  2  Denio,  492.    Knis-  Pearson,  7  Sim.  290.  Att'y  Gen.  v.  Shore, 

kern  v.  The  Lutheran  Church  of  St,.  Johns,  id.  30!),  note 


590  Trusts  fCh.  7. 

ol  the  fund,  there  is  no  individual  or  minority  left  to  invoke  the  aid  ol 
the  court ;  and  there  remains  no  one  to  interfere  unless  the  attorney  gen- 
eral should  file  a  bill  to  establish  and  compel  the  execution  of  the  trust, 
according  to  the  will  of  the  donor  ;  or  unless  some  other  party,  succeeding 
to  the  interest  of  the  donor  as  heir,  next  of  kin  or  residuary  legatee,  as 
the  case  may  be,  should  assert  his  rights.  The  question,  in  such  case, 
will  arise  between  other  persons  than  those  for  whom  the  original  charity 
was  created.  Between  the  latter  there  can  be  no  controversy  if  they 
are  all  agreed. 

It  is  a  point  of  great  importance,  in  cases  arising  under  the  doctrine  of 
charitable  uses,  whether  the  intention  of  the  donor  may  be  ascertained 
from  any  other  source,  than  from  the  deed  or  other  instrument  by  which 
the  charity  is  created.  This  point  is  settled  in  the  English  courts, 
upon  sound  and  enlightened  principles,  the  rejection  of  which  would  re- 
move the  strongest  inducements  of  individuals  to  devote  any  portion  of 
their  property  to  charity.  "  In  every  case  of  charity,"  said  Lord  Lynd- 
hurst,1  "  whether  the  object  of  the  charity  be  directed  to  religious  purposes 
or  to  purposes  purely  civil,  it  is  the  duty  of  the  court  to  give  effect  to  the 
intent  of  the  founder,  provided  this  can  be  done  without  infringing  any 
known  rule  of  law.  It  is  a  principle  that  is  uniformly  acted  upon  in 
courts  of  equity.  If  the  terms  of  the  deed  of  foundation  be  clear  and  pre- 
cise in  language,  and  clear  and  precise  in  the  application,  the  course  of 
the  court  is  free  from  difficulty.  If,  on  the  other  hand,  the  terms  which 
are  made  use  of  are  obscure,  doubtful  or  equivocal,  either  in  themselves 
or  in  the  application  of  them,  it  then  becomes  the  duty  of  the  court  to 
ascertain  by  evidence,  as  well  as  it  is  able,  what  was  the  intent  of  the 
founder  of  the  charity,  in  what  sense  the  particular  expressions  were 
used.  It  is  a  question  of  evidence,  and  that  evidence  will  vary  with  the 
circumstances  of  each  particular  case  ;  it  is  a  question  of  fact  to  be  deter- 
mined, and  the  moment  the  fact  is  known  and  ascertained,  the  application 
of  the  principle  is  clear  and  easy." 

';  It  can  scarcely  be  necessary  to  cite  authorities  in  support  of  these 
principles.  They  are  founded  in  common  sense  and  common  justice  ;  but 
if  it  were  necessary  to  refer  to  any  authority,  I  might  refer  to  the  case  of 
the  Attorney  General  v.  Pearson,  and  to  another  case  which  was  cited  at 
cue  bar,  the  case  in  the  house  of  lords.  Throughout  those  judgments, 
the  principles  which  have  been  stated  were  acknowledged  and  acted  upoi 


1  See  his  opinion  in  Att'y  Gen.  v.  Shore,    &  Fin.  355.     5  Scott's  New  R.  958.     ]  1 
7  Sim.  290.     Note  to  Att'y  Gen.  v.  Pear-    Sim.  615. 
s-m,  11  id.  592.     Shore  v.  Wilson,  9  CI. 


Oh.  7.J  Charities.  591 

by  a  noble  and  learned  judge,  (Lord  Eldon,)  of  more  experience  in  courts 
of  equity,  and  more  experience  in  questions  of  this  nature,  than  any  other 
living  person.  I  look  upon  it,  then,  that  these  principles  are  clear  and 
established,  and  that  they  admit  of  no  doubt  whatever."1 

Those  in  this  country  who  repudiate  this  doctrine  sometimes  rely  upon 
the  doubt  of  the  chancellor  in  the  Baptist  Church  of  Hartford  v.  With- 
ercll,2  as  to  the  propriety  of  the  doctrine  of  Lord  Eldon  in  the  Attorney 
General  v.  Pearson.3  But  when  it  is  considered  that  the  remarks  of  the 
chancellor,  in  that  case,  were  not  necessary  to  a  right  decision  of  it,  and 
have  since  been  withdrawn  by  him,*  and  have  been  dissented  from  by  the 
highest  court  in  the  state,5  it  would  seem  that  the  dictum  in  question 
should  not  be  regarded  as  authority.  Indeed,  the  chancellor  seems  to  re- 
cognize the  recent  English  cases  as  sound  law,  in  his  opinion  in  Miller 
v.  Gable.* 

The  doctrine  of  Lord  Lyndhurst  was  substantially  adopted  by  the  court 
of  errors  in  Miller  v.  Gable,  already  cited,  and  the  recent  English  cases 
were  referred  to  with  apparent  approbation.  The  principles  deduced 
from  them  by  Gardiner,  president  of  the  senate,  have  already  been  stated, 
and  they  seem  to  give  a  rule  on  this  subject,  as  definite  as  the  nature  of 
the  subject  will  allow. 

In  the  case  of  the  Attorney  General  v.  Shore,  commonly  known  as  the 
Lady  Ilcwley  charity,  the  language  of  the  deed  which  raised  the  trust 
v.  as.  ••  to  assist  poor  and  godly  preachers  of  Christ's  holy  gospel."  The 
I  nitarians  were  in  possession  and  claimed  the  fund,  and  amongst  other 
things,  evidence  was  received,  that  Lady  Hewley,  the  donor,  was  a  Pres- 
byterian, and  a  believer  of  the  doctrine  of  the  trinity.  The  object  of  the 
p  irol  proof  was  to  show  that  she  had  not  used  the  term  "  godly"  as  appli- 
cable to  a  class  of  preachers  who  denied  what  she  esteemed  a  fundamental 
doctrine  of  the  gospel.  The  language  in  its  application  was  ambiguous; 
it  would  be  used  by  a  Unitarian  in  one  sense,  and  by  a  Trinitarian  in 
another.  The  one  would  deem  it  a  part  of  Christ's  "  holy  gospel"  to  deny, 
the  other  to  assert,  the  divinity  of  the  Savior.  The  court  being  of  the 
Opinion,  upon  the  evidence,  that  the  funds  were  misapplied,  and  consider- 
ing the  danger  of  future  abuse  from  the  fact  that  the  trustees  were 
Unitarians,  removed  the  trustees,  and  affirmed  the  decree  of  the  vice 

1  9  dark  &  Fin.  355.     1  Greenl.  Ev.        •  Miller  v.  Gable,  2  Denio,  54S. 

§  205,  note.  •  10  Paige.  847,  citing  2  Rnss.  114.    Mil- 

2  8  Paige,  304.  ligan  v.  Mitchell,  1  Myl.  &  K.  44G ;  S.  0. 
'  3  Meriv.  204.  3  Myl.  &  C.  72.  Att'y  Gen.  v.  Pearson, 
4  See  hia  remarks  in  Gable  v.  Miller,  10  7  Sim.  290. 

Paige,  647. 


592  Trusts.  [Ck  7, 

chancellor,  which  excluded  persons  professing  Unitarian  opinions  from 
participating  in  the  benefit  or  administration  of  the  charity. 

In  Miller  v.  Gable,1  land  was  conveyed  to  trustees  in  1765,  for  the 
use  of  a  church  known  as  the  German  Reformed  Church  of  the  city 
of  New-York,  which  was  Calvinistic  in  doctrine,  and  in  the  declaration  of 
trust  was  called  the  Calvinistic  church  in  the  city  of  New- York,  worship- 
ping in  the  German  language ;  which  declaration  of  trust  stated  that  the 
property  was  purchased  by  contributions  from  certain  German  and  Swiss 
inhabitants  of  the  city  of  New-York,  with  the  assistance  of  divers  char- 
itable and  well  disposed  persons,  as  a  site  for  a  church  for  the  worship 
of  God,  and  that  all  persons  were  inclined  to  preserve  the  estate  in  all 
times  coining  for  the  pious  uses  aforesaid.  The  trust  so  created  was 
held  by  the  court  of  errors  not  limited  to  the  exclusive  use  of  a  congre- 
gation holding  the  doctrines  denominated  Calvinistic  ;  and  such  trust 
was  therefore  not  violated  by  the  application  of  the  propert}/-,  by  a  major- 
ity of  the  congregation,  to  the  maintenance  of  public  worship,  according 
to  the  doctrines  of  any  other  evangelical  denomination  of  christians.  And 
when  the  church  referred  to  in  such  declaration  of  trust,  though  formerly 
independent,  was  then  connected  with  the  reformed  Dutch  church,  and 
had  become  subordinate  to  the  ecclesiastical  judicatories  of  that  church, 
and  continued  so  connected  for  several  years,  after  which  the  connection 
was  suspended,  and  again  renewed,  and  finally  broken  off;  and  a  majority 
of  the  congregation  devoted  the  property  to  the  maintenance  of  its  wor- 
ship as  an  independent  church,  though  a  minority  adhered  to  the  connec- 
tion with  the  Dutch  church,  it  was  also  held  that  there  was  no  violation 
of  trust. 

On  the  principles  before  stated  it  should  seem  that  where  a  church, 
organized  on  the  basis  of  independency,  afterwards  unites  with  the 
organization  of  another  church,  by  becoming  subordinate  to  its  judicato- 
ries, so  far  as  the  temporalities  are  concerned,  is  binding  only  so  long  as 
the  parties  to  it  mutually  consent  to  its  continuance.  The  denomina- 
tional name  of  a  religious  corporation  or  society,  to  which  a  donation  is 
made,  and  the  doctrines  actually  taught  therein  at  the  time  of  the  gift, 
may  be  resorted  to  in  order  to  limit  and  define  the  trust  in  respect  to 
doctrines  usually  considered  fundamental,  such  as  those  in  dispute  between 
Trinitarians  and  Unitarians  ;  but  not  as  to  lesser  shades  of  doctrine.2 

The  Unitarian  cases  in  Massachusetts  do  not  necessarily  conflict  Avith 
those  in  this  state  and  in  England.     The  former  were  decided  upon  their 

1  2  Demo,  492.  2  Miller  v.  Gable,  2  Denlo,  492;  S.  0 

10  Paige,  627. 


Oh.  7  J  Charities.  593 

local  statutes  and  usage,  and  not  upon  the  doctrine  of  charitable  uses.1 
They  are,  in  truth,  inapplicable  as  authorities  on  this  question.  It  has 
been  decided  in  that  state  that  the  statute  of  43  Elizabeth,  ch.  4,  in  regard 
to  gifts  to  charitable  uses,  is  in  force  in  that  state ;  and  upon  that  princi- 
ple, a  bequest,  for  charitable  uses,  to  an  unincorporated  female  society  in 
another  state,  composed  in  part  of  married  women,  was  valid  ;  and  a 
court  of  equity  Avould  appoint  a  trustee  to  receive  the  bequest  in  trust 
for  such  charities  as  are  administered  by  such  society.2 

Courts  of  equity  disclaim  all  right  to  interfere  with  the  religious  belief 
of  any  person,  or  to  prevent  the  full  enjoyment  by  every  citizen  of  all 
the  rights  of  conscience  secured  by  the  constitution.  They  merely  exer- 
cise a  benign  authority,  in  the  administration  of  trusts,  to  prevent  the 
misapplication  of  property  accumulated  for  one  purpose,  from  being 
devoted  to  another  and  different  object.  The  cardinal  design  is  to  carry 
out  the  will  and  intent  of  the  donor,  when  consistent  with  the  rules  of 
law.  If  the  application  of  the  ordinary  doctrines  of  the  court  works 
injustice ;  or  if,  by  the  lapse  of  time,  or  other  causes,  the  public  good 
would  be  promoted  by  a  diversion  of  the  funds  to  other  objects,  in 
whole  or  in  part,  the  remedy  is  with  the  legislature,  and  not  with  the 
courts.3 

In  the  case  of  Andrew  v.  The  General  Theological  Seminary  of  the 
Protestant  Episcopal  Church  in  the  United  States,  the  New-York  Bible 
and  Prayer  Book  Society,  and  others,4  the  question  arose  on  a  bill  filed 
by  the  residuary  legatees  of  the  late  Henry  Pope,  claiming  under  his 
will  and  codicils,  against  the  defendants,  for  a  final  account  and  distribu- 
tion of  the  estate  of  the  testator,  setting  aside  and  avoiding  two  legacies 
claimed  by  the  two  corporations  above  named.  The  assistant  vice  chan- 
cellor of  the  first  circuit  declared  both  legacies  void,  and  his  decree  was 
affirmed  by  the  superior  court  of  New-York,  mainly  upon  the  ground 
that  the  doctrine  of  the  English  court  of  chancery  applicable  to  charitable 
uses  was  not  in  force  in  this  state,  either  because  it  never  was  in  force 
lure,  or  because  it  was  abrogated  by  the  repeal,  in  1788,  of  the  statute 
of  43  Elizabeth,  ch.  4,  and  the  adoption  in  1777  of  the  first  constitution, 

1  linker  v.  Fales,  10  Mass.  488.     Steb-  107.     Sanderson  v.  White,  18  Pickering, 

bias  v.  Jennings,  10  Pick.  172.     Page  v.  328. 

Crosby,  24  Pick.  211.     Story's  Eq.  Juris.  3  Stat.  7,  8,  Vict.  sess.4,ch.45,  (8  Lond. 

|1191,  a,  note.  Jurist,  889.) 

-'  Waabbawj   v.  Bewail,   9  Mete.  280.  *  4  Saadf.  S.  C.  R.  150,  by  title,  An- 

Barbaok  v. Whitney,  24 Pick.  140.    Bart-  drew  v.  N.  Y.  Bible  and  Prayer  Book 

lett  v.  Nye,  4  Mete.  378.    Bartlett  v.  King,  Society,  S.  O.  on  appeal.  J  :v!dmi,  Dee.  T. 

12  Mass.  687.  Going  v.  Emmery,  10  Pick.  1853 

Eq.  Jl'u  7.") 


d94  Trusts.  [Ch.  7. 

which  extended  its  protection  to  every  form  and  sect  of  religion  ;  and 
also  upon  the  ground  that  the  cy  pres  doctrine  of  the  English  courts, 
applicable  to  charitable  uses,  has  never  been  held  in  this  state.  The 
court  of  appeals  in  December  term,  1853,  reversed  the  decrees,  both  of 
the  superior  court  and  of  the  assistant  vice  chancellor,  upon  the  ground 
that  both  the  bequests  might  eventually  be  sustained  as  gifts  to  religious 
and  charitable  purposes,  but  without  determining  absolutely  that  ques- 
tion, as  there  was  no  trustee  or  person  before  the  court  who  could  claim  the 
disposition  of  the  legacy  given  to  the  Auxiliary  N.  Y.  Bible  and  Common 
Prayer  Book  Society.  The  record  was  remitted,  with  leave  to  the  com- 
plainants so  to  amend  their  bill  as  to  make  the  attorney  general  a  party, 
and  to  proceed  with  the  causes  in  the  court  below. 

A  brief  statement  of  the  case  will  show,  that  the  doctrine  of  charitable 
uses,  and  a  limited  application  of  the  doctrine  of  cy  pres,  were  necessarily 
involved  in  the  decision,  and  their  existence  in  this  state  sustained  by 
the  decree  of  the  court  of  appeals. 

By  one  bequest,  the  testator  gave  to  the  Auxiliary  N.  Y.  Bible  and  Com- 
mon Prayer  Book  Society,  at  the  death  of  the  last  survivor  of  four  annu- 
itants named  in  the  will,  .$1500,  to  be  placed  at  interest,  and  the  interest 
added  to  the  principal  for  21  years,  or  until  the  sum  should  amount  to 
$5000,  (whichever  should  first  happen,)  and  the  income  thereafter  to  be 
expended  in  the  purchase  and  gratuitous  distribution  of  common  prayer 
books. 

By  the  other  bequest,  the  testator  gave  certain  coins  and  medals,  anu 
the  sum  of  $2000,  to  the  trustees  and  executors  named  in  the  will,  upon 
trust,  that  if  upon  the  death  of  the  surviving  annuitant  there  should  bo 
in  existence  any  theological  seminary  in  this  state,  established  under  the 
authority  of  the  general  convention  of  the  Protestant  Episcopal  Church, 
for  the  instruction  in  theological  learning  of  young  men  intended  for  tho 
ministry  in  said  church,  the  trustees  should  deliver  the  coins  and  medals, 
and  pay  the  money  to  the  managers  of  such  seminary,  the  coins  and 
medals  to  be  preserved  for  the  use  of  the  seminary,  and  the  interest  of 
the  money  to  be  applied  in  support  of  a  scholarship,  to  be  filled  by  one  of 
the  testator's  kindred  ;  and  if  none  should  be  found  qualified  and  willing 
to  fill  such  scholarship,  then  the  interest  to  be  given  to  such  person  in 
priest's  orders,  in  said  church,  as  the  bishop  of  the  diocese  of  New-York 
should  appoint ;  who  should  preach  in  Trinity  church,  at  such  time  or 
times,  during  the  sitting  of  the  convention  of  the  Protestant  Episcopal 
Church  in  said  state,  as  said  bishop  should  appoint,  one  or  more  lectures 
of  his  own  composition,  upon  the  evidences  and  truths  of  the  christian 
religion,  and  should  afterwards  print  and  publish  the  same  :   such  dispo- 


Ob.  7.]  Charities.  59o 

sition  to  continue  yearly  until  one  of  the  testators  kindred  should  be 
found,  willing  and  qualified  to  take  the  scholarship ;  and  the  like  dispo- 
sition forever  thereafter  in  like  cases  of  vacancy.  If  no  such  seminary 
should  be  in  existence  at  the  death  of  the  last  surviving  annuitant,  the 
coins  and  medals  were  to  be  retained,  and  the  money  to  be  kept  at  interest 
and  accumulated  by  the  trustees,  until  such  institution  should  be  formed  ; 
and  if  not  formed  within  twenty-one  years  after  the  death  of  the  last  an- 
nuitant, the  whole  to  fall  into  the  general  residue  of  the  estate. 

The  charter  of  the  Auxiliary  New-York  Bible  and  Common  Prayer  Book 
Society,  granted  in  1817,  expired  in  1837.  That  society  was  organized, 
and  had,  during  its  existence,  acted  as  an  auxiliary  to  the  New-York 
Bible  and  Common  Prayer  Book  Society,  whose  corporate  powers  are 
still  in  force,  and  who  claimed  the  legacy  of  $1500. 

The  General  Theological  Seminary  of  the  Protestant  Episcopal  Church 
in  the  United  States,  which  was,  at  the  death  of  the  last  surviving  annui- 
tant, (which  occurred  in  1844,)  and  still  is,  an  incorporated  seminary  in 
this  state,  answering  the  description  given  in  the  will,  claimed  the  coins 
and  medals,  and  the  legacy  of  $2000. 

It  was  thought  to  be  quite  clear,  by  the  learned  judge  who  delivered 
the  opinion  of  the  superior  court,  that  neither  of  these  legacies  could  be 
sustained,  if  they  could  be  sustained  at  all,  upon  any  other  principle, 
than  the  existence  in  this  state  of  the  doctrine  applicable  to  charitable 
uses  ;  and  being  of  the  opinion  that  that  doctrine  had  been  abrogated 
by  the  adoption  of  the  first  constitution  and  the  repeal  of  the  statute  of 
4 I!  Elizabeth,  ch.  4,  the  bill  was  dismissed.'  The  reversal  of  the  decree 
of.  the  superior  court  by  the  court  of  appeals,  in  connection  with  the  de- 
cision of  the  latter  court,  in  Williams  v.  Williams,  at  the  same  term,  cannot 
be  otherwise  treated  than  as  affirming  the  existence  in  this  state  of  the 
doctrine  relative  to  charitable  uses,  including  the  doctrine  of  cy  pres,  in 
the  limited  manner  which  has  already  been  stated.'2 

It  is  believed  that  the  doctrine  in  question  has  no  necessary  connec- 
tion with  a  religious  establishment  maintained  bylaw  ;  but  can  be  upheld 


1  See  opinion  of  Duer,  J.  4  Sandf.  S.  O.  Barb.  105,  are  based  upon  the  opinion  of 

R.  172  to  188,  and  also  his  opinion  in  Duer,  J.  in  Ayers  v.  Meth.  Epis.  Church, 

Ayers  v.  The  Methodist  Church,  3  id.  3  Sandf.  S.  C.  R.  351 ;  the  doctrine  of 

858-379.  which  is  overthrown  bv  the  court  of  ap- 

1  See  ante.    The  opinion  of  the  supreme  peals  in  Williams  v.  Williams,  and  An- 

court  in  the  third  district,   in  Yates  v.  drew  v.  The  N.  Y.  Bible  and  Common 

Yates,  9  Barb.  324,  339,  and  of  the  learned  Prayer  Book  Society,  already  considered 

judge  in  the  4th  district,  in  Yoorhees  v.  in  the  text. 
Presbyterian  Chrrch  of  Amsterdam,  17 


596  Trusts.  [Ch.  7 

by  the  courts  of  equity  of  any  country,  where  Christianity  is  the  prevail- 
ing, though  not  the  established  religion.  A  trust  to  promote  doctrines 
designed  to  assail  and  subvert  the  christian  faith,1  or  to  introduce  cus- 
toms forbidden  by  law,  or  in  the  language  of  the  constitution,  "  to  excuse 
acts  of  licentiousness,  or  justify  practices  inconsistent  with  the  peace 
or  safety  of  the  state,"  cannot  he  enforced  by  the  courts.  Property 
so  devoted  by  the  donor,  Avould  not  be  protected  against  the  claims  of 
those  to  ■whom  it  would  pass  by  law,  in  case  of  no  valid  disposition  by  its 
owner.  But  property  may  be  given  in  trust  for  the  support  of  any  reli- 
gious sect,  catholic  or  protestant,  when  the  object  of  the  charity  is  not 
forbidden  by  law,  and  the  doctrines  to  be  disseminated  do  not  tend  to 
licentiousness,  and  do  not  justify  practices  inconsistent  with  the  peace 
and  safety  of  the  state.2  Whether  a  use  be  superstitious,  and  so  invalid, 
must  be  determined  with  reference  to  the  general  course  of  those  denom- 
inations who  adopt  Christianity  as  their  religion.  And  perhaps  no  use 
could  be  adjudged  void  as  superstitious,  unless  it  should  be  adjudged  to 
be  against  public  policy,  or  as  falling  within  the  range  of  practices  which 
the  constitution  does  not  tolerate.3 

Nor  are  we  without  evidence  that,  when  the  general  intention  of  the 
testator  is  to  give  to  charity,  the  failure  of  the  particular  mode  in  which 
the  testator  meant  to  effectuate  the  charity,  shall  not,  in  this  state,  destroy 
the  charity,  even  in  cases  where,  by  the  common  law,  the  purpose  could 
only  be  carried  out  in  England  by  the  sign  manual  of  the  king.  Where 
it  is  seen  that  the  substantial  intention  is  charity,  the  law  will  substitute 
another  mode  of  devoting  the  property  to  charitable  purposes,  though  the 
formal  intention  of  the  testator  as  to  the  mode  cannot  be  accomplished.4 
In  this  state  the  power  has  been  exercised  by  the  legislature,  which  in 
England  is  carried  out  by  the  court  of  chancery,  in  conformity  to  the  di- 
rection and  appointment  of  the  king,  under  his  sign  manual.  This  is  ap- 
parent from  the  act  paased  in  1795,  concerning  the  legacy  bequeathed  by 
David  Jones  for  the  benefit  of  a  charity  school.5 

From  the  preamble  to  that  act,  it  appears  that  David  Jones,  late  of 
Fort  Neck,  in  Queen's  county,  deceased,  in  and  by  his  last  will  and  tes- 
tament, did  give  and  bequeath  unto  the  charge  and  care  of  the  church 
wardens  of  the  parish  of  Hempstead,  in  Queen's  county  aforesaid,  for  the 
time  being,  and  to  the  charge  and  care  of  their  successors  forever,  annu- 

1  Per  Hoffman,  A.  V.  Ch.  in  Miller  v.  4  Moggridge  v.  Thackwell,  7  Ves.  69 
Sable,  2  Denio,  624.  Att'y  Gen.  v.  Siderfin,  1  Vern.  224. 

2  [<].  525.  6  18th  Sess.  chap.  29  2  Webster,  249, 
Dae.  Abr.  Charitable  Uses.  D. 


Ch.  7.J  Charities.  597 

ally  chosen  by  virtue  of  the  act,  entitled  an  act  for  settling  a  ministry 
and  raising  a  maintenance  for  them  in  the  city  of  New- York,  county  of 
Richmond,  Westchester  and  Queen's  county,  the  sum  of  £300,  current 
money  of  New- York,  to  be  lent  out  on  interest  on  good  land  security  and 
the  said  interest  annually  applied  forever  in  the  education  and  instruc- 
tion of  such  poor  children  belonging  to  the  town  of  Oystcrbay,  as  tho 
said  church  wardens  for  the  time  being  should  deem  proper  objects  of 
charity  ;  the  said  church  wardens  once  in  every  year,  on  the  first  Tues- 
day of  May,  to  deliver  unto  the  vestry  of  the  parish  of  Hempstead,  annually 
elected  by  virtue  of  the  said  act,  a  just,  true  and  circumstantial  account, 
on  oath,  of  all  their  proceedings  in  relation  to  the  disposition  and  applica- 
tion of  the  said  interest  money,  and  how  and  to  whom  the  principal  sums 
are  lent,  and  to  take  the  directions  of  the  said  vestry  with  respect  to  their 
further  proceedings  therein  ;  and  although  the  executors  of  the  said  last 
will  and  testament,  or  some  or  one  of  them,  offered  to  pay  the  said  legacy, 
yet  no  person  applied  for  payment  thereof,  and  the  same  remained 
unpaid.  The  act  further  recited  that  the  executors  were  dead,  and  ad- 
ministration of  the  goods,  chattels  and  credits,  which  were  of  the  said 
David  Jones  at  the  time  of  his  death  not  administered  by  his  executors, 
had  been  committed  to  Samuel  Jones  and  Samuel  Clowes,  who  it  was 
suggested  would  probably  soon  have  assets  in  their  hands  sufficient  to 
pay  the  said  sum  of  £300  pounds  ;  but  the  act  mentioned  in  the  said  be- 
quest having  been  repealed,  there  was  not  any  person  authorized  to  re- 
ceive the  same.  In  order,  therefore,  that  the  intentions  of  the  testator 
might  be  carried  into  execution,  it  was  enacted  that  it  should  be  lawful  for 
the  said  administrators  to  pay  the  said  £300  to  the  overseers  of  the  poor 
of  the  said  town  of  Oystcrbay  for  the  time  being,  or  either  of  them, 
whose  receipt  for  the  same  should  be  a  sufficient  discharge  to  the  said  ad- 
ministrators for  the  said  legacy.  And  the  said  overseers  of  the  poor  of 
the  said  town  of  Oysterbay,  and  their  successors,  were  thereby  directed  and 
required  to  lend  out  the  said  sum  of  £300  at  interest  on  good  land  secu- 
rity, and  to  opply  the  said  interest  annually  forever  in  the  education  and 
instruction  of  such  poor  children  belonging  to  the  said  town  of  Oysterbay, 
as  the  said  overseers  of  the  poor  of  the  said  town  for  the  time  being 
should  deem  proper  objects  of  charity  ;  and  once  in  every  year,  on  the 
last  Tuesday  in  March  in  every  year,  to  deliver  to  the  town  clerk  and 
supervisor  for  the  time  being  of  the  said  town,  and  such  justice  or  justices 
of  the  peace  as  might  reside  in  the  said  town,  or  such  of  them  as  should 
meet  to  examine  and  audit  the  accounts  of  the  poor  of  the  said  town,  a 
just,  true  and  circumstantial  account,  on  oath,  of  all  other  proceedings  in 
relation  to  the  disposition  and  application  of  the  said  interest  money,  and 


598  Trusts.  [Ch.  1 

how  and  to  whom  the  principal  sums  were  lent.  And  the  said  auditing 
board  were  required  to  make  a  report  thereof  to  the  then  next  town  meet- 
ing to  be  held  in  the  said  town,  and  the  said  town  meeting  were  required 
to  give  such  directions  with  respect  to  the  further  proceedings  of  the  said 
overseers  therein,  as  the  major  part  of  the  freeholders  and  inhabitants  of 
tiie  said  town  then  met  might  deem  proper  or  necessary.1 

If  this  had  been  the  common  case  of  the  failure  of  a  trustee,  it  is  quite 
clear  that  legislative  aid  was  not  necessary,  and  that  the  then  court  of 
chancery  would  have  afforded  the  requisite  relief.  But  the  legatee  was 
incapable  of  taking,  and  the  legacy  could  not  be  carried  into  exact  exe- 
cution according  to  the  will  of  the  testator.  We  had  no  officer  with  the 
like  power  of  the  king  of  Great  Britain,  to  direct  in  what  mode  the  in- 
tention of  the  testator  should  be  carried  out.  It  presented  a  case  not 
within  the  scope  of  the  jurisdiction  of  chancery,  without  the  sign  manual, 
and  was  properly  executed  by  the  supreme  power  of  the  government.2 


SECTION  XVI. 


OF   CONSTKUCTIVE    OR   IMPLIED    TRUSTS. 


According  to  the  division  of  the  subject  in  the  introductory  part  of 
this  chapter,  we  are  now  to  treat  of  constructive  or  implied  trusts. 
Under  this  head  some  writers  embrace  the  doctrine  of  administration, 
legacies  and  resulting  trusts,  the  former  of  which  we  have  sufficiently 
treated  under  preceding  heads.3  Legacies  are  sometimes  connected 
with  express  trusts,  and  at  other  times  rest  upon  the  implied  trusts  on 
the  part  of  the  executors,  to  distribute  the  estate  according  to  the  ex- 
pressed or  implied  intention  of  the  testator.  The  subject  may  as  appro- 
priately be  considered  under  the  head  of  express  trusts,  as  under  that 

1  It  would  be  instructive  to  learn,  after  in  this  state,  at  the  time  of  his  death, 

the  lapse  of  over  sixty   years,  in   what  there  can  be  no  doubt  that  the  chanty  he 

manner  this  trust  has  been  managed  by  intended  to  create,  could  have  been  exe- 

the  town  meeting  of  the  town  of  Oyster-  cuted  by  the  aid  of  the  legislature,  as 

bay,  and  what  is  the  present  condition  of  representing  the  parens  patriot.    See  tho 

the  trust  funds.  case  under  the  title  of  William  Fontaia 

a  Story's  Eq.  §  1169,  and  cases  cited.  v.  William  Ravenel,  3  Am.  L.  Reg.  264. 

Ilad  Frederick  Kohn,  whose  will  re-        3  1  Mad.  Ch.  Pr.  466.     Story's  Eq.  Im 

cently  received  the  consideration  of  the  plied  Trusts,  §  1195. 
supreme  ccurt  of  the  U.  S.  been  domiciled 


Oh.  7.]  Implied  Trusts.  599 

of  implied  trusts.  Resulting  trusts  fall  more  properly  under  the  head 
of  implied  trusts ;  hut  as  they  have  been  abolished  in  this  state,  except 
in  favor  of  creditors,  or  in  case  of  fraud,  they  naturally  came  under  oui 
consideration,  to  some  extent,  when  treating  of  the  statutory  changes  on 
this  subject.1 

Whenever  the  circumstances  of  a  transaction  are  such,  that  the  persor 
who  takes  the  legal  estate  in  property,  cannot  also  enjoy  the  beneficia 
interest,  without  necessarily  violating  some  established  principle  of 
equity ;  the  court  will  immediately  raise  a  constructive  trust,  and  fasten 
it  upon  the  conscience  of  the  legal  owner,  so  as  to  convert  him  into  a 
trustee  for  the  parties,  who  in  equity  are  entitled  to  the  beneficial  enjoy- 
ment2 

These  constructive  trusts  may  be  separately  considered  under  two 
distinct  classes  of  cases ;  first,  where  the  acquisition  of  the  legal  estate 
is  tainted  with  fraud,  either  actual  or  constructive  ;  and  second,  where  the 
trust  depends  upon  some  general  equitable  rule,  independently  of  the 
existence  of  fraud. 

An  illustration  of  the  first  class  of  cases  may  be  found  where  a  man 
purchases  land  with  the  funds  of  another,  and,  without  the  consent  or 
knowledge  of  the  party  paying  the  consideration,  takes  an  absolute  con- 
veyance in  his  own  name ;  or,  where  a  party,  in  violation  of  some  trust 
purchases  land  so  conveyed,  with  moneys  belonging  to  another.  These 
are  cases  expressly  saved  by  the  statute,  and  a  trust  results  in  favor  of 
the  party  by  whom  the  consideration  money  is  paid,  or  whose  moneys  are 
thus  used  for  that  purpose.  Before  the  statute,  a  trust  resulted  in  favor 
of  the  party  paying  the  consideration,  whether  the  deed  was  taken  to 
another,  with  or  without  the  consent  or  knowledge  of  the  party  by  whom 
the  money  was  paid.  This  permitted  a  secret  resulting  trust  to  be 
created  by  the  party  claiming  its  benefit.  It  was  this  latter  kind  of 
trust  that  the  statute  abolished,  leaving  the  law  in  full  force  in  relation 
to  such  as  were  the  offspring  of  fraud,  on  the  part  of  the  one  who  took 
the  conveyance  to  himself.3 

The  principles  settled  by  the  cases  prior  to  the  statute,  are  still  appli- 
cable, where  the  resulting  trust  is  recognized  by  the  law ;  and  hence  the 
mode  of  proof  now  is  the  same  as  that  which  formerly  prevailed.     From 


'  1  R.  S.  728,  §|  51  to  53,  and  ante,  p.  3  1  R.  S.  728.     Reviser's  Notes,  3  E.  S. 

417.  83,  2d  ed.     Bodine  v.  Edwards,  10  Paige, 

2  Hill  on  Trustees,  144.    Mech.  Bank  504.   Norton  v.  Stone,  8  id.  222.    Lounds- 

v.  Seton,  1  Pet.  309.    TVormley  v.  Worm-  bury  v.  Purdy,  11  Barb.  490;  8.  0.  affirm- 

ley,  8  Wheat.  421.  ed,  16  id.  376. 


600  Trusts.  [Ch.  7 

the  nature  of  the  case,  such  transactions  almost  invariably  rest  upon  parol 
proof.  Such  proof  is  not  within  the  statute  of  frauds,  as  it  does  not 
contradict  the  deed,  but  establishes  an  independent  fact.'  Such  proof  is 
not  only  admissible  against  the  face  of  the  deed  itself,  but  in  opposition 
to  the  answer  of  the  trustee  denying  the  trust.2  And  if  part  only  of  tho 
consideration  is  paid,  the  trust  results  pro  tanto  only.3 

A  resulting  trust  must  arise,  if  at  all,  at  the  time  of  the  conveyance. 
It  cannot  arise  after  the  legal  title  has  passed  to  the  grantee  by  a  subse^ 
quent  application  of  the  funds  of  a  third  person  to  pay  the  purchase 
money,  or  for  the  improvements  of  the  property  so  as  divest  the  legal 
estate  of  the  grantee.4  To  constitute  a  resulting  trust  in  real  estate,  it 
is  necessary  that  the  consideration  money,  upon  the  purchase,  should 
have  belonged  to  the  cestui  que  trust,  or  that  it  should  have  been  ad- 
vanced by  some  other  person  as  a  loan  to  him,  or  that  it  should  have 
been  advanced  as  a  gift  to  him,  or  for  his  benefit.5 

A  resulting  trust  is  the  mere  creature  of  equity,  as  a  resulting  use  is 
of  law ;  and  it  cannot,  therefore,  arise  where  there  is  an  express  trust 
declared  by  the  parties,  and  evidenced  by  a  written  declaration  of  such 
express  trust.6 

Equity  will  never  raise  a  resulting  trust  in  fraud  of  the  laws  of  tho 
land.  The  law  will  never  cast  the  legal  or  equitable  estate  upon  a  per- 
son who  has  no  right  to  hold  it;  although  an  estate  may,  by  an  express 
contract  or  conveyance,  be  vested  in  an  alien,  until  office  found,  for  the 
benefit  of  the  people  of  the  state.  Where  an  alien,  therefore,  purchases 
land  and  takes  an  absolute  conveyance  in  the  name  of  a  citizen,  Avithout 
any  agreement  or  declaration  of  a  trust,  the  law  will  not  raise  a  trust  in 
favor  of  the  alien  purchaser,  who  cannot  hold  the  land,  any  more  than  it 
would  cast  it  by  descent  upon  an  alien  heir,  who  cannot  hold  it  against 
the  state.  The  result  in  such  a  case  must  be,  either  that  the  nominal 
grantee  takes  the  land,  discharged  of  any  trust  by  mere  implication  of 
law,  or  that  there  is  a  resulting  trust  in  behalf  of  the  people  of  tho 
state,  which  they  alone  can  enforce  against  the  grantee  in  the  deed.7 

But  a  court  of  equity  will  not  suffer  this  principle  to  operate  to  the 

1  Boyd  v.  McLean,  1  J.  Oh.  E.   582.  4  Kogers  v.  Murray,  3  Paige,  390.  Bots- 

Botsford  v.  Burr,  2  id.  405.     Livingston  ford  v.  Burr,  supra. 

x.  Livingston,  id.  537.    Jackson  v.  Stern-  B  Getman  v.  Getman,  1  Barb.  Ch.  E. 

berg,  1  John.  Cas.  153.     11  J.  E.  91.     13  499. 

W.  463.     16  id.  197.    Hosford  v.  Merwin,  c  St.  John  v.  Benedict,  6  J.  Ch.  E.  115. 

5  Barb.  51.  Leggett  v.  Dubois,  5  Paige,  117. 

8  Boyd  v.  McLean,  supra.  T  Id.   118.     Hubbard  v.    Goodwin»  9 

'  Botsford  v.  Burr,  supra.  Leigh's  E.  514. 


Oh.  7.J  Implied  Trusts.  601 

prejudice  of  an  alien,  when  the  purchase  of  real  estate  for  his  benefit  is 
made  as  a  means  of  collecting  a  debt  due  to  him,  and  without  his  knowl 
edge,  and  with  no  view  of  defeating  the  policy  of  the  law.  Hence,  where 
land  is  taken  in  payment  of  a  debt  due  to  an  alien,  tnd  conveyed  to  a 
trustee  upon  a  valid  trust  to  sell  the  same  and  convert  it  into  personal 
estate,  without  any  unreasonable  delay,  for  the  benefit  of  the  cestui  que 
trust,  a  court  of  equity,  upon  the  principles  of  equitable  conversion,  will 
consider  the  land  as  personal  estate  belonging  to  the  alien,  and  transmis- 
sible to  his  personal  representatives  as  such ;  and  if  necessary,  will  com- 
pel the  trustee,  who  holds  the  legal  estate,  to  sell  the  land  and  convert  it 
into  money.1 

Thus,  where  an  attorney,  who  was  employed  to  collect  a  partnership 
debt  due  to  a  firm,  the  members  of  which  were  aliens  ;  but  on  account  of 
the  alienage  of  the  creditors,  and  without  any  directions  from  them,  took 
the  conveyance  in  his  own  name,  to  enable  him  to  sell  the  land  and  convert 
it  into  money,  and  wrote  to  them  informing  them  what  he  had  done,  and 
promising  to  sell  the  land  for  them  as  soon  as  purchasers  could  be  found, 
but  died  before  any  sale  of  the  land  had  been  made,  and  his  heirs,  after 
his  death,  sold  the  land,  supposing  it  to  be  their  own  ;  it  was  held  that  the 
proceeds  of  such  sale,  in  the  hands  of  the  heirs,  were  personal  property 
belonging  to  the  copartnership  firm,  and  that  the  personal  representatives 
of  the  last  surviving  partner  were  entitled  to  recover  such  proceeds  as  a 
part  of  the  copartnership  effects.2 

The  trust  which  results  in  favor  of  creditors,  under  the  provisions  of 
the  Revised  Statutes  relative  to  uses  and  trusts,  where  a  grant  is  made 
to  one  person  and  the  consideration  therefor  is  paid  by  another,3  is  only  a 
trust  in  favor  of  those  who  were  creditors  of  the  person  paying  the  con- 
sideration at  the  time  when  the  conveyance  was  executed  and  such  con- 
sideration was  paid.  There  is  no  resulting  trust  in  favor  of  creditors 
whose  debts  are  subsequently  contracted.'1 

The  object  of  the  statute  is  to  prevent  a  fraud  upon  creditors.  If  the 
party  paying  a  consideration  owes  a  debt  to  the  party  to  whom  the  con- 
veyance was  made,  and  pays  the  consideration  at  the  request  of  the  lat- 
rer  and  in  discharge  or  on  account  of  the  debt,  the  creditors  of  the  party 
paying  the  money  have  no  equity  against  the  grantee  of  the  land.  Where 
says  Bronson,  Ch.  J.,s  there  is  an  existing  obligation,  either  legal  or  mor 
al,  to  pay  so  much  money,  and  the  payment  is  not  made  with  any  refer- 

1  Anstice  v.  Brown,  C  Paige,  448.  4  Brewster  v.  Power,  10  Paige,   562 

*  Id.     Craig  v.  Le>lie,  iJ    Wheat  oG3.  Wait  v.  Day,  4  Denio,  443. 

•  1  R.  S.  728,  §  5-2.  "  Wait  v." Day,  4  Denio,  444. 
Eq.  J  fK.                                  7G 


602  Trusts.  |Ch.  7. 

ence  to  the  future,  nor  by  way  of  mere  gratuity,  the  case  is  not  within 
the  mischief  against  "which  the  legislature   intended  to  provide.     But 
where  the  payment  is  made  by  way  of  gift,  to  some  favorite,  whom  the 
debtor  may  be  willing  to  prefer  before  his  creditors  ;  or  the  purchase  is 
made  upon  any  trust,  express  or  implied,  that  the  debtor  shall  in  any  form 
reap  the  fruits  of  it;  and  in  all  cases  where  there  is  no  present  duty,  le 
gal  or  moral,  to  pay  the  money,  the  payment  is  a  fraud  upon  creditors 
and  they  can  reach  the  land  by  their  judgments  and  executions.1     As  a 
necessary  consequence  from  these  principles,  it  was  thought  to  be  clear 
that  a  purchase  made  by  way  of  gift  or  advancement  to  a  mistress,  although 
it  may  not  look  to  future  cohabitation,  cannot  be  supported.     Creditors, 
it  was  said,  have  a  higher  and  better  claim   than  such  a  woman.     It   is 
hardly  necessary  to  add,  that  a  payment  which  looks  to  future  cohabita. 
tion,  cannot  for  a  moment  be  defended  as  against  creditors.2 

As  a  resulting  trust  may  be  proved  by  parol  evidence,  so  it  may  be  re- 
butted by  evidence  of  the  same  kind.3 

At  common  law  the  appointment  of  an  executor  vests  in  him  all  the 
personal  estate  of  his  testator,  and  if  any  surplus  remains  after  payment 
of  funeral  expenses  and  debts,  such  surplus  will  belong  to  the  executor. 
But,  in  equity,  if  it  can  be  collected  from  any  circumstances  or  expressions 
in  the  will,  that  the  testator  intended  to  confer  on  his  executor  only  the 
office,  and  not  the  beneficial  interest,  such  intention  shall  receive  effect, 
and  the  executor  shall  be  deemed  a  trustee  for  those  on  whom  the  law 
casts  the  surplus  in  case  of  a  complete  intestacy.  The  cases  on  the  sub- 
ject in  the  English  books  are  numerous,  and  to  some  extent  contradic- 
tory^ to  the  circumstances  which  will  be  sufficient  to  exclude  the  executor 
from  the  surplus.  They  are  collected  and  reviewed  by  Mr.  Fonblanque 
in  his  notes  to  the  Treatise  of  Equity.4  In  this  state  the  English  rulo 
has  Ions:  since  been  abrogated,  and  the  executor  treated  as  a  trustee  of 
the  unbequeathed  surplus  for  the  benefit  of  the  widow,  children  and  next 
of  kin  of  the  testator.5  A  similar  rule  has  lately  been  adopted  in  Eng- 
land by  the  act  of  1  "VVm.  4,  chapter  40.6  It  seems  unnecessary,  therefore, 
to  review  the  numerous  cases  which  have  been  adjudged  on  this  subject 
before  the  alteration  of  the  common  law  rule.     Our  statute  treats  tin 


1  Wait  v.   Day,   4  Denio,   444.    The  a  Id. 

chancellor,  in  Brewster  v.  Power,  supra,  3  Jackson  v.  Feller,  2  Wend.  465. 

expressed  the  opinion  that  the  creditor  4  2  Fonb.  B.  2,  ch.  5,  §  3. 

could  ouly  reach  the  land  by  a  bill  in  5  2  R.  S.  96,  §  75. 

equity,  and  not  by  sale  uuder  an  execu-  '  2  Wills.  Ex.  899. 
tion  at  law. 


Ch.  7.]  Implied  Trusts.  G03 

executors  as  trustees,  and  makes  provision,  which  the  common  law  did  not, 
for  their  compensation.1  It  is  probable  that  some  similar  provision  exists 
in  the  other  states. 

The  same  doctrine  of  resulting  trusts  arises  upon  conveyances.  If  the 
grantor  of  real  estate,  even  for  a  consideration,  conveys  a  less  interest 
than  he  owns,  the  residue  results  to  him  or  his  heirs  ;  or  which  is  in 
effect  the  same  thing,  it  remains  in  him.  Thus,  if  the  owner  of  the  fee 
grant  a  life  estate  to  B.,  the  remainder  undisposed  of  still  rests  in  the 
grantor  and  will  descend  to  his  heirs,  unless  devised  by  his  will.8  And 
as  a  use  will  not  arise  without  a  consideration,  a  deed  of  land  without  a 
consideration  will  not  pass  the  title  to  the  grantee  ;  but  will  result  to  the 
use  of  the  grantor.  But  if  there  be  a  consideration  expressed,  though 
merely  nominal,  the  use  will  not  result  to  the  grantor,  the  payment  of 
even  a  nominal  consideration  showing  an  intent  that  the  grantee  should 
have  the  use.3  The  whole  doctrine  rests  upon  the  principle  that  the 
trust  results  in  favor  of  the  party  who  advanced  the  consideration  ;  and 
of  course,  if  no  consideration  was  advanced  by  any  body,  the  trust  will 
result  in  favor  of  the  grantor,  and  the  estate  will  thus  remain  in  him.4 
The  object  of  inserting  a  consideration  in  a  deed  is  to  prevent  a  result- 
ing trust.5 

The  principle  extends  to  a  great  variety  of  cases,  many  of  which  have 
already  been  sufficiently  treated  under  the  head  of  fraud.  In  some 
cases,  for  example,  where  a  purchase  is  made  by  a  party  standing  in  such 
relation  of  trust  and  confidence  to  the  vendor  as  to  give  him  an  influence 
over  him,  the  sale  will  be  set  aside  at  the  instance  of  the  party  benefi- 
cially interested,  or  at  his  election  it  will  be  suffered  to  stand.  In  others, 
the  purchaser  will  be  converted  into  a  trustee.  Thus,  where  an  agent 
employed  to  purchase  an  estate,  became  the  purchaser  for  himself,  he  was 
treated  by  the  court  as  a  trustee  for  his  principal.6  On  the  like  principle, 
an  agent  employed  to  settle  a  debt,  due  from  his  principal,  will  not  be 
permitted  to  derive  any  benefit  from  it  by  purchasing  it  himself;  because 
it  is  his  duty,  on  behalf  of  his  employer,  to  settle  the  debt  upon  the  best 
terms  he  can  obtain  ;  and  if  he  is  enabled  to  procure  a  settlement  of  the 
debt  for  any  thing  less  than  the  whole  amount,  it  would  be  a  violation  of 
his  duty  to  his  employer,  or  at  least  would  hold  out  a  temptation  to  violate 


1  2  B.  S.  93,  §  58.    McWhorter  v.  Ben-  410.    Porter's  case,  1  Co.  22,  26  a,  and 

son,  1  Ilopk.  Ch.  R.  28.  notes.     Belden  v.  Seymour,  8  Conn.  312. 

1  2  Fonb.  Eq.  B.  2,  ch.  5,  §  4  and  notes.  6  Id. 

1  Id.  §  2  and  notes.  6  Lees  v.  Nuttal,  1  Russ.  &  Myl.  53. 
4  Bottsford  v.  Burr.  2  J.  Ch.  R.  405, 


604  Trusts.  [Ch.  7. 

that  duty,  if  he  might  take  an  assignment  of  the  debt  he  -was  employed 
to  settle,  and  so  make  himself  a  creditor  of  his  employer,  to  the  full  amount 
of  the  debt,  which  he  was  employed  to  settle.  If  therefore  an  agent 
obtain,  under  these  circumstances,  an  assignment  of  a  debt  due  from  his 
principal,  he  will  be  held  a  trustee  for  his  principal,  and  will  only  be  en- 
titled to  the  sum  he  actually  paid  for  the  debt.1  So  also,  where  a  surety 
gets  rid  of,  and  discharges  an  obligation  at  a  less  sum  than  the  full 
amount,  he  will  not  be  allowed,  as  against  his  principal,  to  make  himself 
a  creditor  for  the  whole  amount,  but  only  for  the  amount  which  he  has 
actually  paid  in  discharge  of  the  common  obligation.2 

The  cases  on  this  subject  do  not  rest  upon  the  actual  existence  of 
fraud  in  the  particular  case,  but  upon  principles  of  public  policy.  In  the 
leading  case  on  this  subject,  Lord  Thurlow  said,  if  a  trustee,  though 
strictly  honest,  buys  an  estate  himself  and  then  sells  it  for  more  ;  accord- 
ing to  the  rules  of  a  court  of  equity,  from  general  policy,  and  not  from 
any  peculiar  imputation  of  fraud,  he  shall  not  be  permitted  to  sell  to  him 
self,  but  shall  remain  a  trustee  to  all  intents  and  purposes.  And,  in  that 
case,  having  sold  the  property  at  a  highly  advanced  price,  he  was  decreed 
a  trustee,  as  to  the  sums  produced  by  the  second  sale,  for  the  original 
vendor.3 

The  same  principle  was  applied,  in  an  early  case,  to  the  renewal  of  a 
lease  by  a  trustee  in  his  own  name  and  for  his  own  benefit.  Even  in  the 
absence  of  fraud,  and  on  the  refusal  of  the  lessor  to  grant  a  new  lease  to 
the  cestui  que  trust,  the  lease  so  taken  was  decreed  to  be  held  upon  trust 
for  the  person  entitled  to  the  old  lease.4 

The  equitable  maxim  that  a  trustee  is  disabled  to  purchase,  for  his  own 
benefit,  at  the  sale  of  the  trust  property,  is  derived,  first,  from  the  general 
principle  in  the  doctrine  of  trusts,  that  a  person  assuming  a  fiduciary 
relation  towards  another,  in  regard  to  property,  is  bound  to  exercise,  for 
the  benefit  of  his  cestui  que  trusts,  all  the  rights,  powers,  knoAvledge  and 
advantage,  of  every  description,  which  he  derives  from  that  position,  or 
acquires  by  means  of  it ;  at  least  he  is  disabled  from  exerting  them  for 
his  own  private  benefit ;  and  second,  from  the  specific  and  positive  rule,  that 
an  agent  to  sell  for  others,  though  he  have  but  a  mere  ministerial  power 
for  that  single  purpose,  is  disabled  from  being  a  purchaser  at  the  sale.5 

1  Reed  v.  Norris,  2  Myl.  &  Cr.  374.  can  edition,  where  the  principal  cases  are 

2  Id.  collected  and  reviewed. 

s  Fox  v.  Mackreth,  2  Bro.  C.  C.  400.  4  Kiech  v.  Sandford,  2  Eq.  Cas.  Abr, 
2  Cox,  320.  "White's  Eq.  Cas.  72, 105,  and  741.  White's  Leading  Cases  in  Eq.  32, 
see  the  notes  to  that  case  in  the  Anieri-    H«-re  and  Wallace's  ed.  47.  and  notes. 

6  White's  Eq.  Cas.  137,  notes  to  H.  &  W 


Ch.  7.J  Implied  Trusts.  605 

These  principles  are  firmly  established  in  equity  jurisprudence,  and 
are  stated  in  various  forms  in  the  cases.  Chancellor  Walworth  says,  on 
one  occasion,  that  it  is  a  rule  of  equity,  of  universal  application,  that 
no  person  can  be  permitted  to  purchase  an  interest  in  property  where  he 
has  a  duty  to  perform  which  is  inconsistent  with  the  character  of  pur- 
chaser.' The  rule  is  not  confined  to  a  particular  class  of  persons,  such 
as  guardians,  trustees,  solicitors  and  attorneys,  but  is  of  universal  appli- 
cation to  all  persons  who  come  within  the  principle.  It  has  been  applied 
to  executors,  administrators  and  agents. 

It  matters  not,  in  cases  falling  within  the  principle,  that  no  fraud  waa 
intended,  and  no  actual  injury  done.  The  rule  is  rather  intended  to 
prevent  wrong,  than  to  remedy  it ;  though  both  objects  will  be  ac- 
complished if  it  be  strictly  followed.  It  is  the  offspring  of  the  doctrine 
of  trusts,  and  it  enables  a  court  of  equity  to  remove  the  temptation  to 
do  wrong,  by  converting  the  wrongful  act  into  rightful  purposes.  Noth- 
ing less  than  incapacity  is  able  to  shut  the  door  against  temptation, 
where  the  danger  is  imminent  and  the  security  against  temptation 
great.  The  wise  policy  of  the  law  has,  therefore,  put  the  sting  of  a 
disability  into  the  temptation  as  a  defensive  weapon  against  the  strength 
of  the  danger  which  lies  in  the  situation.2 

The  rule  was  well  stated  by  the  learned  judge  who  delivered  the 
opinion  of  the  supreme  court  of  the  United  States  in  one  of  the  cases 
cited,  (Michoud  v.  Girod,  supra.)  "  The  general  rule,"  said  the  learned 
judge,  "  stands  upon  our  great  moral  obligation  to  refrain  from  placing 
ourselves  in  relations  which  ordinarily  excite  a  conflict  between  self- 
interest  and  integrity.  It  restrains  all  agents,  public  and  private  ;  but 
the  value  of  the  prohibition  is  most  felt,  and  its  application  more  frequent, 
in  the  private  relations  in  which  the  vendor  and  purchaser  may  stand 
towards  each  other.  The  disability  to  purchase,  is  a  consequence  of  that 
relation  between  them  which  imposes  on  the  one  a  duty  to  protect  the 
interest  of  the  other,  from  the  faithful  discharge  of  which  duty  his  own 
personal  interest  may  withdraw  him.  In  this  conflict  of  interest,  the 
law  wisely  interferes.  It  acts  on  the  possibility  that,  in  some  cases,  the 
sense  of  that  duty  may  prevail  over  the  motives  of  self-interest,  but  it 

1  Torrey  v.  Bank  of  Orleans,  9  Paige,  King,  5  Lond.  Jurist,  18,   before  Lord 

663.     Ilawley  v.  Cramer,  4  Cowen,  736.  Cottingham.     De  Caters  v.  Le  Ray  Cb.au- 

Van  Epps  v.  Van  Epps,  9  Paige,  237,  241.  mont,  3  Paige,  178.     Hamilton  v.  Wright, 

Cram  v.  Mitchell,  1  Sandf.  Ch.  R.  251,  9  C.  &  Fin.  111.     Bostwick  v.  Adams,  3 

256.     Dobeon  v.  Racey,  3  id.  61.    Davou  Comst.  60. 

v.  Fanning,  2  J.  Ch.  R.  252,     Michoud  v.        '  Id.     Davou  v.  Fanning,  2  J.  J.  Ch. 

Girod,  4  lit  w.  S.  C.  503.     Greenlaw  v.  R  270      8  Tomlin'e  Brown  42,  63 


606  Trusts.  [Ch.  7. 

provides  against  the  probability,  in  many  cases,  and  the  danger  in  aft 
cases,  that  the  dictates  of  self-interest  will  exercise  a  predominant 
influence  and  supersede  that  of  duty.  It  therefore  prohibits  a  party 
from  purchasing,  on  his  own  account,  that  which  his  duty  or  trust  re 
quires  him  to  sell  on  account  of  another,  and  from  purchasing,  on  account 
of  another,  that  which  he  sells  on  his  own  account.  In  effect,  he  is  not 
allowed  to  unite  the  two  opposite  characters  of  buyer  and  seller,  because 
his  interests,  when  he  is  seller  or  buyer  on  his  own  account,  are  directly 
conflicting  with  those  of  the  person  on  Avhose  account  he  buys  or  sells."1 

Where  a  person  stands  as  trustee  for  others,  and  bound  in  that  char- 
acter to  protect  the  general  interests  of  those  for  whose  benefit  the  trust 
was  created,  in  regard  to  the  subject  of  the  sale,  he  is  equally  inca- 
pacitated from  purchasing  for  his  own  benefit,  at  a  sale  under  an  adverse 
proceeding,  and  at  a  judicial  sale,  as  at  his  own  sale,  under  Ids  power  as 
trustee.  The  reason  is  ;  as  general  trustee  of  the  subject,  it  is  his  duty 
to  make  it  bring  as  much  as  possible,  at  any  sale  that  may  take  place ; 
and  therefore  he  cannot  put  himself  in  a  situation  where  it  becomes  his 
interest  that  the  property  should  bring  the  least  sum.2 

The  Revised  Statutes  of  this  state  have  expressly  forbid  executors  or  ad 
ministrators,  making  a  sale  of  the  real  estate  of  the  deceased  sold  under 
an  order  of  the  surrogate,  and  the  guardians  of  any  minor  heirs  of  the 
deceased,  from  purchasing  directly  or  indirectly,  or  being  interested  in 
the  purchase  of  any  part  of  the  real  estate  so  sold ;  and  they  enact  that 
all  sales  made  contrary  to  the  provisions  of  the  section  shall  be  void  ; 
but  the  prohibition  does  not  extend  to  a  purchase  by  a  guardian  for  the 
benefit  of  his  ward.3 

In  cases  not  within  the  statute  prohibition,  it  is  presumed  that  a 
trustee  may  purchase  by  the  consent  of  the  court  of  chancery  ;  but  the 
court  will  always  require,  upon  such  application,  such  facts  to  be  shown 
as  justify  a  departure  from  the  general  rule.4  If  a  trustee  has  a  per- 
sonal interest  in  the  sale,  which  may  be  sacrificed  if  he  is  not  allowed  to 
me  a  bidder,  the  court  will  substitute,  in  his  place,  a  master  or  an- 
other trustee  to  execute  the  trust,  if  it  can  be  done  without  injury  to 
the  interest  of  the  cestui  que  trust.5 

Though  trustees  and  those  sustaining  that  relation  are  forbidden  to 
purchase,  without  leave  of  the  court,  or  the  assent  of  those  interested  in 
the  trust  property,  still  their  purchase  is  not  absolutely  void  at  law ; 

1  Wormley  v.  Wormley,  8  Wheat.  421.  "  Davou  v.  Fanning,  2  J.  Oh.  R.  252, 

Prevost  v.  Gratz,  6  id.  481.  262.    Dobsou  v.  Rscey,  3  Sandf.  CI.    Pe 

1  Chapin  v.  Weed,  1  Clarke's  Ch.  464.  Caters  v.  Chaumont,  3  Paige,  173. 

2  Pv.  S.  104,  §  27.  6  Id. 


Ch.  7.]  Implied  Trusts.  607 

but  is  voidable  only  in  a  court  of  equity  at  the  suit  of  the  cestui  que 
trusts.  It  stands  valid,  therefore,  unless  some  one  thus  interested  elect 
to  avoid  it.  The  equity  of  the  cestui  que  trusts  is  to  have  the  option  of 
confirming  it  and  holding  the  trustee  to  it,  or  of  setting  it  aside  and  hav- 
ing a  resale  ordered.  No  person  but  the  cestui  que  trust,  or  some  one 
standing  in  his  place,  can  apply  to  be  relieved,  and  a  stranger  cannot 
avoid  it.1  And  the  application  must  be  made  within  a  resonable  time  , 
and  if  not  so  made,  it  will  be  considered  as  a  waiver  or  abandonment  of 
the  right.2  If  the  property  has  been  sold  without  notice  by  the  trustee 
to  a  bona  fide  purchaser,  before  the  cestui  que  trust  applies  to  the  court, 
the  original  sale  cannot  be  set  aside,  and  the  remedy  will  be  only  personal 
against  the  trustee  for  an  account  of  the  profit,  if  he  made  any.3 

The  doctrine  above  stated  relates  only  to  executed  contracts.  If  the 
bargain  be  not  completed,  and  the  aid  of  the  court  be  invoked  in  behalf 
of  a  trustee  or  agent  to  compel  a  specific  performance  of  the  agreement, 
and  the  cestui  que  trusts  be  parties,  and  object  to  a  confirmation  of  the 
sale,  a  court  of  equity  will  not  decree  performance  against  their  objection, 
though  the  case  be  otherwise  free  from  difficulty.4  Thus,  the  court  refused 
to  decree  performance  of  an  executory  contract  of  an  executor,  having  a 
power  to  sell  under  the  will,  made  with  his  cestui  que  trust,  to  purchase 
the  subject  of  the  trust,  upon  the  principle  that  such  purchase  is  not 
favored  by  the  court.5  If  the  cestui  que  trust  has  the  right  as  a  matter 
of  course  to  have  the  sale  set  aside  and  a  resale  ordered,  as  is  evident 
fioin  all  the  cases  before  cited  that  he  has,  it  follows  as  a  necessary 
consequence  that  the  trustee,  while  the  purchase  is  incomplete  and  execu- 
tory, cannot  have  any  equity  against  the  cestui  que  trust,  for  a  specific 
performance  of  the  agreement,  against  the  will  of  the  latter.  The  right 
of  the  one  to  have  such  a  sale  set  aside,  without  reference  to  the  question 
of  fraud,  is  incompatible  with  a  right  in  the  trustee  or  agent,  to  have  the 
Bale  confirmed  against  the  remonstrance  of  the  cestui  que  trust. 

On  the  same  principles,  where  contracts  which  are  marie  against  public 
policy,  though  a  court  of  equity  will  in  most  cases  order  them  to  be  given 
up,  even  on  the  application  of  a  person  standing  in  pari  delicto,  yet  such 
contracts  cannot  be  enforced  at  law,  though  they  be  only  constructively 

1  Jackson  v.  Van  Dalfson,  5  J.  R.  43,  2  JJawley  v.  Cramer,  2  Cowen,  718. 

48.     Jackson  v.  Walsh,  14  id.  407.     Wil-  3  Id.     Jackson  v.  Walsh,  14  J.  R.  407, 

Bon  v.  Troup,  2  Cowen,  195.     llawley  v.  415. 

Cramer.  4  id.  710.     Davou  v.  Fanning,  2  4  Munroe  v.  Allaire,  2  Cai.  Cas.  in  Er« 

J.  Ch.  It.  252,  208.    Jennison   v.  Hap-  ror,  182,  approved  by  Kent  in  Davou  v 

good,  7  Pick.  1.  Vanning,  supra. 

6  Id. 


608  Trusts.  [Ch  T 

fraudulent.  The  case  of  marriage  brokage  bonds  affords  an  illustratioL 
of  the  rule.1  The  cou.-t  will  never  aid  a  party  in  obtaining  the  fruits  of 
a  contract  which  was  made  in  contravention  of  public  policy,  or  the  known 
and  established  maxims  of  equity  jurisprudence. 

The  remaining  class  of  constructive  trusts,  under  this  head,  is  that  of 
the  purchase  from  a  trustee  made  with  notice  of  the  trust.  It  is  a  general 
rule  that  a  purchaser  from  a  trustee  upon  notice,  though  upon  full  con- 
sideration, and  a  fortiori,  a  volunteer  taking  with  notice,  is  in  equity 
bound  by  the  trust  to  the  same  extent,  and  in  the  same  manner,  as  the 
person  from  whom  he  purchased.'2  He  is  converted  into  a  trustee.  And 
hence,  to  support  a  plea  of  bona  fide  purchaser,  without  notice,  the  defend- 
ant must  aver  and  prove,  not  only  that  he  had  no  notice  of  the  plaintiff's 
rights  before  his  purchase,  but  that  he  had  actually  paid  the  purchase 
money  before  such  notice.  Though  he  secured  the  purchase  money,  yet 
if  it  was  not  paid  before  notice,  it  will  not  be  sufficient  to  maintain  the 
plea.3 

A  purchaser  without  notice,  from  one  who  has  fraudulently  purchase  1, 
is  not  affected  by  the  fraud  ;  and  it  is  also  a  well  settled  rule  of  equity, 
that  a  man  who  is  a  purchaser,  with  notice  himself,  from  a  person  who 
bought  without  notice,  may  protect  himself  under  the  first  purchaser. 
The  reason  is  to  prevent  a  stagnation  of  property,  and  because  the  first 
purchaser  being  entitled  to  hold  and  enjoy,  must  be  equally  entitled  to 
sell.4 

If,  however,  the  second  purchaser  be  the  original  trustee,  who  re-ac- 
quires the  estate,  he  will  be  fixed  with  the  trust.5 

The  notice  in  these  cases  may  be  either  to  the  purchaser  himself,  or 
his  counsel,  attorney  or  agent ;  though  the  counsel,  attorney  or  agent 
be  himself  the  vendor,  or  be  concerned  for  both  vendor  and  purchaser.6 
In  the  latter  case,  where  both  sides  employ  the  same  agent,  as  is  fre- 
quently done  in  purchases,  according  to  Lord  Hardwicke,  each  side  is 
affected  with  notice,   as  much   as  if  different  counsel  and  agents  had 


1  St.   John  v.  St.  John,  11  Yes.  535.  3  Id.     2  Fonb.  B.  2,  ch.  C,  §  2  and  notes. 

Smith  v.  Bruning,  2  Vern.  392.  3  P.  Wins.  307. 

■  Mead  v.  Orrery.  3  Atk.  238.    Worm-  4  Alexander  v.  Pendleton,  8  Cranch, 

ley  v.  Wormley,  8  Wheat.  421.     Murray  462.     Jackson   v.  Given,    8   J.    R,    141. 

v.   Ballon,    1  J.  Ch.  R.  5G6.     Oliver  v.  Pwiimfus  v.  Platnir,  1  J.  Ch.  R.  219.    De- 

Platt,  3  How.  S.  C.  U.  S.  333.     Gilchrist  maret  v.  Wynkoop,  3  id.  147. 

v.  Stevenson,  9  Barb.  9.    The  Mechanics'  b  Buvey  v.  Smith,  1  Yern.  149.     Hill 

Bank  of  Alexandria  v.  Seton,  1  Pet.  U.  S.  on  Trustees,  231. 

R.  309.  '  L2  Neve  v.  Le  Xeve.  3  Atk.  C46. 


Ch.  7.]  Implied  Trusts.  609 

been  employed.1  If  an  agent  who  acts  in  that  character  for  both  parties, 
with  their  knowledge  and  assent,  receives  notice  of  a  fraud,  both  parties 
are  chargeable  with  knowledge  of  the  fraud.'2 

As  a  general  rule,  notice  to  the  agent,  to  be  effective,  must  be  ic  the 
course  of  the  same  transaction.3  This  rule  is  not  without  its  exceptions ; 
and  is  not  to  be  received  but  with  qualifications.  Where  one  transaction 
is  closely  followed  by  and  connected  with  another,  or  where  it  is  clear 
that  a  previous  transaction  was  present  to  the  mind  of  a  solicitor,  when 
engaged  in  another  transaction,  there  is  no  ground  for  the  distinction,  by 
which  the  rule  that  notice  to  the  solicitor  is  notice  to  the  client,  has  been 
restricted  to  the  same  transaction.4  In  adverting  to  the  decision  of  Sir 
John  Leach,  that  notice  to  a  man  in  one  transaction  is  not  to  be  taken  aa 
notice  to  him  in  another  transaction,  Lord  Eldon  said  in  one  case,  that 
it  should  be  considered  "  whether  one  transaction  might  not  follow  so 
close  upon  another,  as  to  render  it  impossible  to  give  a  man  credit  foi 
having  forgotten  it.  I  should  be  unwilling  to  go  so  far  as  to  say,  that  if 
an  attorney  has  notice  of  a  transaction  in  the  morning,  he  shall  be  held 
in  a  court  of  equity  to  have  forgotten  it  in  the  evening :  it  must  in  all 
cases  depend  upon  the  circumstances."5  It  would  seem  to  follow,  that  if 
the  circumstances  be  such,  that  the  agent  must  be  presumed  to  recollect 
the  fact  of  which  the  notice  is  predicated,  that  his  principal  is  chargeable 
with  the  like  notice,  though  it  was  not  received  by  the  agent  in  the  same 
transaction.6 

In  cases  where  it  is  necessary  to  charge  a  party  with  notice  of  an  in- 
cumbrance or  other  infirmity  in  his  title,  notice  to  a  husband  is  not  notice 
to  the  wife.7 

Having  brought  under  review  some  of  the  cases  where  the  acquisition 
of  the  legal  title  is  tainted  with  fraud,  either  actual  or  constructive,  in 
which  the  party  acquiring  the  title  will  be  converted  into  a  trustee,  we 
proceed  to  notice,  in  the  next  place,  some  cases  in  which  courts  of  equity 
convert  the  holder  of  the  legal  estate,  though  unaffected  with  fraud,  either 

1  Le  Xeve   v.  Le  Xeve,  3  Atk.   648.  *  Hargreaves  v.  Rothwell,l  Keene,  154. 

KeLnedy  v.  Greene,  3  Myl.  &  K.  699.  Perkins  v.  Bradley,  1  Eare,  230. 

Dryden  v.  Frost,  3  Myl.  &  C.  670.  •  Mountford  v.  Scott,  1  T.  &  R.  274 

3  Id.  280. 

1  Bank  U.  S.  v.  Davis,  2  Hill,  451.  War-  •  Wester velt  v.  Haff,  2  Sandf.  Ch.  R.  98. 

wick  v.  Warwick,  3  Atk.  294.     Hiern  v.  Kennedy  v.  Green,  3  M,  &  K.  699. 

Mills,  13  Yes.  120.    Mech.  Bank  v.  Seton,  'Snyder   v.   Sponable,    1    Hill,   567; 

1  Pet.  309.  affirmed  7  id.  427. 

Eg.  Jur.  77 


610  Trusts.  [Ch.  7. 

actual  or  constructive,  into  a  trustee  for  the  party  who  is  entitled,  by  the 
rules  of  equity,  to  the  beneficial  interest. 

The  most  obvious  instance  of  this  kind,  is  where  a  man  has  entered 
into  an  executory  contract  to  purchase  real  estate.  In  this  case,  at  law, 
the  legal  title  remains  unaffected  by  the  contract,  and  the  purchaser  has 
acquired  only  a  right  of  action  for  breach  of  contract  in  case  it  i3  not  per- 
formed. But  a  court  of  equity  views  the  transaction  in  a  different  light. 
One  of  the  primary  maxims  of  that  court  is,  as  has  been  shown  elsewhere, 
that  it  looks  upon  things  agreed  to  be  done,  as  actually  performed.  Act- 
ing on  this  principle,  when  the  contract  is  made,  it  considers  the  vendor 
as  a  trustee  of  the  purchaser  of  the  estate  sold ;  and  the  purchaser  as  a 
trustee  of  the  purchase  money  for  the  vendor.1 

The  equity  attaches  immediately  on  making  the  contract,  and  will  not 
therefore,  be  affected  by  the  subsequent  death,  or  any  other  act  of  either 
of  the  parties,  before  the  contract  is  carried  into  execution.  The  trust 
in  the  vendor  for  the  vendee,  in  such  a  case,  attaches  to  the  land,  and 
binds  the  heir  of  the  former.  If  the  latter  be  an  infant,  or  a  lunatic,  and 
his  estate  in  the  hands  of  a  committee,  equity  has  power  to  carry  the 
agreement  into  effect  by  a  specific  performance.2 

This  doctrine  applies  also  to  cases  where  a  trust  has  been  created  and 
no  trustee  has  been  appointed,  or  the  trustee  was  incapable  of  acting,  or 
has  died.  As  equity  permits  no  valid  trust  to  fail  for  the  want  of  a 
trustee,  the  court  will  appoint  one  ;3  or  will  follow  the  estate  into  the 
hands  of  the  party  to  whom  it  has  passed,  and  treat  him  as  a  trustee.4 
In  this  state  it  has  been  seen,  that  the  trust,  on  the  failure  of  the  trustees 
by  death,  vests  in  the  court  of  chancery,  and  does  not  descend  to  the  heir.5 

As  the  trust  attaches  to  the  land  which  is  the  subject  of  it,  it  becomes 
obligatory  on  a  purchaser  with  notice,  by  such  purchase ;  and  he  will  be 
decreed  to  execute  the  trust,  unless  the  purchase  be  with  the  permission 
of  a  court  of  equity. 

At  common  law,  every  corporation  aggregate  had  an  unlimited  power 
over  its  property,  and  might  alienate  the  same  in  fee.  or  grant  any  lesser 
estates  therein  without  limitation  or  restriction.6  And  the  same  power 
is  recognized  by  the  Revised  Statutes.7  The  legislature,  in  1806, 
amended  the  act  in  relation  to  religious  incorporations ;  and  authorized 

1  Malin  v.  Malin,  1  Wend.  625.    Cham-  *  Cushney  v.  Henry,  4  Paige,  345. 

pion  v.  Brown,  6  J.  Ch.  R.  402.    Watson  *  1  R.  S.  720,  §  68. 

v.  Le  Row,  6  Barb.  484.  e  Co.  Litt.  44  a,  300  1,  per  Ld.  Mansfield, 

*  Swartout  v.  Burr,  1  Barb.  S.  C.  R.  1  Bur.  R.  221.  Dutch  Church  v.  Mott,  7 
405.     Sutphen  v.  Fowler,  9  Paige,  280.  Paige,  83. 

*  King  v.  Donnelly,  5  Paige,  46.  T  1  R.  S.  599.  §  1. 


Ch.  7.j  Lmplied  Trusts.  611 

the  chancellor,  upon  the  application  of  any  such  incorporation,  in  case  he 
should  deem  it  proper,  to  make  an  order  for  the  sale  of  any  real  estate 
belonging  to  such  incorporation,  and  to  direct  the  application  of  the  money 
arising  therefrom,  1/y  the  said  corporation,  to  such  uses  as  the  same  cor- 
poration, with  the  consent  and  approbation  of  the  chancellor,  should  con- 
ceive to  be  most  for  the  interest  of  the  society  to  which  the  real  estate  so 
sold  belonged. '  But  for  such  consent  of  the  court  of  equity  the  purchasers 
would  receive  the  property,  charged  with  the  trusts  fastened  upon  it, 
while  in  the  hands  of  the  corporation,  and  would  themselves  become 
trustees  for  the  original  purpose  for  which  it  was  acquired.2 

Another  instance  of  a  constructive  trust  of  this  kind  is  the  case  of  a 
person  taking  property  from  a  trustee  without  notice  of  the  trust,  but 
without  having  given  any  valuable  consideration  for  it.3  In  such  a  case, 
the  party  receiving  the  property,  though  guilty  of  no  fraud,  will  be  treat- 
ed as  a  trustee  in  the  same  manner  as  we  have  shown  a  purchaser  with 
notice  will  be  regarded.  A  purchaser  however  without  notice,  and  upon 
a  valuable  consideration,  we  have  seen,  will  be  protected. 

Another  instance  of  trustees,  created  by  the  position  which  they  hap- 
pen to  occupy  at  the  time,  arises  on  the  dissolution  of  any  corporation. 
In  such  a  case,  where  no  other  persons  arc  appointed  by  the  legislature  or 
s  line  court  of  adequate  jurisdiction,  the  statute  enacts  that  the  directors 
or  managers,  by  whatever  name  they  may  be  known  in  law,  shall  be  the 
trustees  of  the  creditors  and  stockholders,  and  shall  have  full  power  to 
settle  the  affairs  of  the  corporation,  collect  and  pay  the  outstanding  debts, 
and  divide  among  the  stockholders  the  moneys  and  other  property  that 
shall  remain,  after  the  payment  of  debts  and  necessary  expenses.4 


SECTION  XVII. 

OF    THE    OFFICE    AND    DUTIES    OF    TRUSTEES    AND     THE     RIGHTS    OF    CESTUI    QUI 

TRUSTS. 

The  general  nature  of  the  office  of  a  trustee,  and  of  the  reciprocal 
rights  and  duties  of  a  trustee  and  cestui  que  trust  may  perhaps  be  col- 

1  L.  of  1806,  ch.  43,  p.  360.     Gen.  Act,        »  Jewett  v.  Palmer,  7  J.  Ch.  R.  65. 
3  R.  S.  292,  298,  §11.  *  1  R.  S.  600,  §  9. 

1  Dutch  Church  v.  Mott,  7  Paige,  84. 


612  Trusts.  [Ch.  7. 

lected  fnni  what  has  already  been  said,  in  various  parts  of  this  treatise. 
The  nature  of  his  estate  has  been  fully  considered.  And  we  may,  with- 
out repeating  what  has  been  said  elsewhere,  present,  in  a  brief  space,  some 
of  the  incidents  and  some  of  the  principles  which  regulate  the  relation 
between  the  trustee  and  his  cestui  que  trust. 

A  trustee  having  accepted  the  office  cannot,  by  his  own  act,  and  with- 
out the  authority  of  the  court,  renounce  it.1  Being  an  office  of  personal 
confidence,  he  cannot  delegate  his  authority  to  others.2  When  the  admin- 
istration of  the  trust  is  committed  to  more  than  one  person,  without  an 
express  authority  for  the  majority  to  act,  all  must  join  in  the  adminis- 
tration of  the  trust,  and  if  one  refuses  to  act,  the  trust  devolves  upon  the 
court.3  On  the  death  of  one  trustee,  the  trust  vests  in  the  survivor. 
Trustees  are  not  liable  for  each  other's  default  in  which  they  have  not  con- 
curred. And  they  can  derive  no  advantage  from  the  office,  save  the  per 
centage  allowed  by  law,  and  their  actual  and  necessary  expenses.4 

It  is  under  this  last  rule  that  a  trustee  is  disabled  to  purchase,  for  his 
own  benefit,  at  a  sale  of  the  trust  property.  The  principle  is  not  con- 
fined to  mere  technical  trustees,  but  extends  to  all  persons  who  act  in  a 
representative  capacity,  and  whose  business  it  is  to  protect  the  interest  of 
others,  such  as  executors  and  administrators,  guardians,  attorneys,  general 
and  special  agents,  committees  of  the  estates  of  lunatics,  and  the  like.  In 
short,  as  was  said  in  one  of  the  cases,  no  person  can  become  a  purchaser 
of  an  interest  in  property,  where  he  has  a  duty  to  perform  which  is  incon- 
sistent with  the  character  of  a  purchaser.3  But  this  subject  is  sufficiently 
discussed  under  other  heads.6  It  has  already  been  sufficiently  shown, 
that  no  act  of  the  trustee  can  deprive  the  cestui  que  trust  of  his  equity 
to  have  the  benefit  of  all  that  has  been  done  in  apparent  execution  of  the 
trust.  And  hence  he  may,  of  course,  and  without  alleging  actual  fraud  in 
the  particular  instance,  ask  for  a  resale  of  the  property;  and  whether  the 
property  was,  or  was  not,  worth  more  than  the  amount  bid  by  the  trus- 
tees, is  a  matter  which  is  never  inquired  into.     The  rights  of  the  cestui 


«  Cruger  v.  Ealliday,  11   Paige,  314.  §  58.    Meacham  v.  Sterns,  9  Paige,  398. 

Matter  of  Van  Wyck,  1  Barb.  Ch.R.  565.  Green  v.  Winter,  1  J.  Ch.  R.  20.     Mum- 

2  Bro.  Max.  665.  Ingram  v.  Ingram,  ford  v.  Murray,  6  id.  1.  Van  Home  v. 
2  Atk.  8S.    2  Kent's  Com.  633.  Bac.  Abr.  Fonda,  5  id.  388. 

tit.  Grant,  E.  (5,)  p.  517,  Buvier's  ed.  6  Torrey   v.  The  Bank  of  Orleans,  9 

3  Matter  of  "Wadsworth,  2  Barb.  Ch.  R.  Paige,  650.  Van  Epps  v.  Van  Epps,  id. 
381.  Burrill  v.  Shiel,  2  Barb.  S.  C.  R.  238,  241.  Cram  v.  Mitchell,  1  Sandf.  Ch. 
457.  R.  251,  256.     Dobson  v.  Racey.  8  id.  61. 

1  Lewen  on  Trustees,  260.     2  R.  S.  93,  •  Chap.  Ill,  Of  Fraud,  Sec.  2. 


o 


3h.  7.]  Implied  Trusts.  613 


que  trust  would  be  ineffectually  protected,  unless  he  had  his  option  to 
affirm  the  purchase,  or  have  a  resale  of  the  property.1 

In  performing  the  duties  of  the  office,  it  is  a  requirement  no  less  of 
sound  morals  than  of  law,  that  the  trustee  should  be  faithful  to  his  trust.2 
This  fidelity  will,  in  general,  be  exhibited  in  the  seasonable  reduction  of 
the  property  to  the  possession  of  the  trustee,  the  safe  custody  and  proper 
investment  of  it.  and  the  due  application  of  the  trust  fund  to  the  purposes 
of  the  trust.  With  respect  to  executors  and  administrators,  these  duties 
are,  with  us,  declared  by  statute,  in  substantial  conformity  to  the  require- 
ments of  the  common  law.3  But  while  a  trustee  or  executor  is  in  general 
only  answerable  for  his  own  default,  it  is  nevertheless  his  duty  to  see  that 
the  funds  in  his  possession  do  not  pass  improperly  into  the  hands  of  his 
co- trustee.  In  such  a  case,  if  a  loss  ensue,  both  trustees  are  alike 
answerable.4 

If  the  trust  funds  in  the  hands  of  the  trustee  are  not  needed  for  the 
purposes  of  the  trust,  it  is  the  duty  of  the  trustee  to  make  the  fund  pro- 
ductive to  the  cestui  que  trust,  by  the  investment  of  it  in  some  proper 
security.5  With  regard  to  what  shall  be  deemed  proper  security,  the 
general  rule  is,  that  the  trustee  must  not  rest  on  personal  security,  and 
if  he  does,  it  is  at  his  own  hazard.  On  one  occasion,  Lord  Kenyon  said, 
that  it  was  never  heard  of  that  a  trustee  could  lend  an  infant's  money  on 
private  security.  If  he  does,  and  takes  a  bond,  with  personal  security, 
be  must  be  responsible  if  the  obligors  become  insolvent,  though  they  were 
in  very  ample  circumstances  at  the  time  the  money  was  lent.'  And  this 
doctrine  seems  to  be  indisputably  settled,  both  in  England  and  in  this 
country.7  And  Chancellor  Kent  said,  in  Smith  v.  Smith,  (supra,)  that 
he  had  no  doubt  it  was  a  wise  and  excellent  general  rule,  that  a  trustee 
loaning  money,  must  require  adequate  real  security  or  resort  to  the 
public  funds.  The  foregoing  rule  is  based  upon  the  assumption  that  no 
particular  mode  of  investment  is  pointed  out  in  the  instrument  creating 
the  trust.  If,  for  example,  executors  or  other  trustees  are  directed  by 
the  instrument  creating  their  authority,  to  make  investments  in  any  spe- 
cified security,  it  is  their  duty  to  conform  to  it.     In  England,  it  is  said, 

1  See  cases  under  preceding  note,  and  5  Pe  Peyster  v.  Clarkson,  2  'Wend.  77. 

Davou  v.  Fanning,  2  J.  Ch.  R.  252.    Mi-  Smith  v.  Smith,  4  J.  Oh.  R.  284. 

ehoud  v.  Girod,  4  How.  S.  C.  R.  503,553.  •  Holmes  v.  Dring,  2  Cox.  C.  1. 

*  1  Cor.  iv.  2.  7  Id.     Pocock    v.  Reddington,  5  Ve6. 

•  2  R.  S.  82,  87,  &c.  2  Will.  Ex.  G40.  799.  Terry  v.  Terry,  Prec.  in  Chan. 
653  et  seq.  273.     Wilkes  v.  Steward.  Cooper's  Eq.-R. 

4  Monell  v.  Monell,  5  -T.  Ch.  R.  283.  6.  Smith  v.  Smith,  4  J.  Ch.  R.  284. 
llninford  v.  Murray   G  id.  1.  Ackerumn  v.  Emott,  4  Barb.  G26. 


014  Trujts.  [Ch.  7 

that  where  trustees  are  expressly  authorized  to  lend  on  real  securities 
they  must  be  careful  not  to  advance  more  than  two  thirds  of  the  real  value 
of  the  estate,  if  it  be  freehold  land  ;  or,  if  the  property  consist  of  houses, 
or  be  otherwise  of  a  fluctuating  or  deteriorating  character,  they  would 
not  be  justified  in  advancing  so  much.  And  they  are  precluded  from 
lending  on  mortgage  to  one  of  themselves.1 

The  trustee,  before  parting  with  the  trust  property  to  another,  should 
ascertain  the  right  of  the  party  to  it.  If  there  be  different  claimants  to 
it,  or  there  be  reasonable  doubts  as  to  which  of  several  persons  has  the 
rightful  legal  claim,  it  is  always  in  the  power  of  the  trustee,  by  a  proper 
application,  to  obtain  the  direction  of  the  court.  In  some  cases,  an  intei 
pleader  is  the  proper  remedy,  the  doctrine  of  which  will  be  found  in  its 
proper  place. 

Though  a  trustee  has  no  right  to  delegate  his  trust,  and  if  he  does  s< 
he  is  himself  liable,  this  does  not  prevent  him  from  resorting  to  the 
usual  and  ordinary  means  of  collecting  and  remitting  funds.2 

A  trustee  should  keep  his  accounts  of  the  transactions  in  relation  to 
the  trust,  separate  from  those  of  his  own  private  affairs,  and  should  never 
mingle  the  trust  funds  with  the  individual  payments  and  disbursements 
of  his  own  business.  Where  no  accounts  have  been  kept,  the  court  will 
not  suffer  a  trustee  to  go  into  a  conjectural  estimate  to  show  the  necessity 
of  his  having  broken  in  upon  the  capital.3  And  where  a  trustee  uses  the 
trust  funds,  or  mingles  them  with  his  own,  he  is  chargeable  with  interest 
And  so,  also,  if  he  has  been  negligent  in  not  paying  the  fund  over,  or 
properly  investing  it.4  But  he  is  not  chargeable  with  imaginary  values, 
or  with  more  than  he  has  received,  unless  there  is  evidence  of  gross  neg- 
ligence, amounting  to  willful  default.5  And  where  the  litigation  arises 
from  the  neglect  of  the  trustee  to  keep  proper  accounts,  and  from  his 
misapplication  of  the  funds,  he  is  chargeable  with  costs.6 

It  results  from  what  has  been  said  that  the  remedy  of  the  cestui  jue 
trust,  for  a  violation  of  duty  by  the  trustee,  is  in  equity.  The  latter  can 
be  compelled  to  perform  the  trust,  and  to  render  an  account  of  his  admin- 
istration of  the  trust  estate,  and  to  make  good  any  deficiency  ;  and  final- 

1  Stickney  v.  Sewell,  1  Myl.  &  C.  8.  Muurray,  6  id.  17.     Clarkson  v.  DePeys- 

8  Knight  v.  Lord  Plymouth,  3  Atk.  480.  ter,    Hopk.   424.     Hart  v.  Ten  Eyck,  2 

1  Teague  v.  Dendy,  2  McCord's  Ch.  R.  J.  Ch.  R.  108.     Mnmfbrd  v.  Murray,  6  id. 

212.  452.     Monell  v.  Monell,  5  id.  296. 

*  Dunscomb   v.  Dunscomb,  1    J.    Ch.  6  Osgood  v.  Franklin,  2  J.  Ch.  R.  1 ; 

R.  516.    Manning  v.  Manning,  id.    527.  S.  C.  14  J.  R.  522. 

1/rown  v.  Picket,  4  id.  305.     Mumford  v.  6  Spencer  v.  Spencei    11  Paige,  200 


Ch.  7.]  Implied  Trusts.  615 

ly,  if  necessary,  can  be  removed  from  office  for  his  misconduct.  But 
while  the  rule  of  courts  of  equity  is  thus  severe,  in  cases  of  gross  delin- 
quency,  it  will,  nevertheless,  afford  to  the  trustee,  acting  in  good  faith,  a 
prompt  indemnity  for  his  necessary  disbursements  and  expenses,  and 
afford  him  a  lien  on  the  trust  property  for  them.1  He  is  also  entitled  t<. 
the  fees  prescribed  by  law.2 

1  Murray  v.  De  Rottenham,  6  J.  Ch.  R.       ■  2  E.  S.  93,  §  58.    Meacham  v.  Sterns, 
b'J.  9  Paige,  S&8. 


CHAPTER  VIII. 

CF   THE    PROTECTION    AFFORDED  BY  COURTS    OF   EQUITY  TO  PERilONS 
LABORING    UNDER    DISABILITY. 

THE  jurisprudence  of  any  country  would  be  extremely  defective,  if  it 
possessed  no  tribunal  with  jurisdiction  adequate  to  afford  protection 
to  those  who  are  laboring  under  natural  or  civil  disabilities.  The  weak 
would  be  at  the  mercy  of  the  strong ;  and  those  who  were  disabled  by 
natural  causes,  or  by  other  means,  from  managing  their  own  affairs, 
would  fall  victims  to  the  cupidity  of  the  artful  and  designing. 

Under  the  class  of  persons,  thus  more  or  less  needing  the  protection 
of  the  law,  may  be  ranked  Infants,  Married  Women,  and  Idiots 
and  Lunatics.  We  shall  devote  this  chapter  to  the  consideration  of  the 
jurisdiction  of  courts  of  equity  over  this  class  of  persons. 


SECTION  I. 


OF   infants. 


Whatever  may  have  been  the  origin  of  the  jurisdiction  of  the 
court  of  chancery,  over  the  property  and  persons  of  infants,  it  was  firmly 
established  in  England,  long  before  the  colonization  and  settlement  of 
this  country,1  and  has  been  constantly  exerted  in  this  state  from  the 
first  foundation  of  the  court.2 

The  jurisdiction  in  question  may  be  appropriately  treated  under  the 
heads  of  the  guardianship,  the  maintenance  and  the  marriage  of  in- 


1  2  Fonb.  Eq.  B.  2,  ch.  2,  §  1,  notes.  *  Mercein  v.  The  People,  25  "Wend,  104, 

per  Paige,  J. 
3q.  Juk  78 

(G17^ 


618  Of  Persons  under  Disability.  [Oh.  8 

fants.  1.  As  a  general  rule,  the  father  is  entitled  to  the  custody  of  his 
infant  offspring,  and  when  differences  exist  between  the  parents,  the 
right  of  the  father  is  preferred  to  that  of  the  mother.  But  he  may  for- 
feit the  right  by  misconduct,  or  lose  it  by  misfortune.'  In  a  compara- 
tively recent  English  case,  this  general  rule  was  pushed  out  to  its  extent, 
and  the  exceptions  much  narrowed.2  In  that  case,  while  the  infant 
children  of  the  marriage  were  in  the  custody  of  the  mother,  and  the 
father  was  living  in  adultery  with  another  woman,  the  court  of  king's 
bench,  on  a  habeas  corpus  sued  out  by  the  husband  and  father,  made  an 
order  upon  the  mother  to  deliver  up  the  children  to  him.  This  supposed 
state  of  the  law  was  declared  by  Lord  Denman,  who  concurred  in  the 
decision,  to  be  of  such  a  character  that  all  the  judges  were  ashamed  of 
it ;  and  it  was  accordingly  soon  after  changed  by  act  of  parliament,  so  as 
to  restore  the  mother  to  her  natural  rights  to  an  equality  with  her  hus- 
band, in  relation  to  the  care  and  custody  of  her  children  within  the  age 
of  nurture.3 

It  this  state  the  general  subject  has  been  on  several  occasions  most 
thoroughly  discussed,  and  although  there  is  some  conflict  of  opinion,  it 
is  believed  that  the  result  of  the  cases,  was  correctly  stated  by  Paige, 
senator,  to  be :  that  the  right  of  the  father  to  the  custody  of  his  child  is 
not  absolute,  and  that  such  custody  is  referable  to  its  interest  and  wel- 
fare, and  is  to  be  selected  by  the  court,  in  the  exercise  of  a  sound  judicial 
discretion,  irrespective  of  the  claims  of  either  parent.4 

In  those  American  cases  which  uphold  to  the  greatest  extent  the  right 
of  the  father,  it  is  conceded  that  it  may  be  lost  by  ill  usage,  immoral 
principles  or  habits,  or  by  his  inability  to  provide  for  his  children.5  When 
this  jurisdiction  has  been  exercised  by  a  court  of  law,  under  a  habeas 
corpus,  there  has  been  the  least  tendency  to  a  relaxation  of  the  general 
rule,  and  the  claim  of  the  father  has  been  sustained  with  the  greatest 
strictness.6  But  even  in  cases  of  that  kind,  it  was  remarked  by  an 
eminent  judge,  that  the  attention  of  the  court  should  be  principally 
directed  to  the  benefit  and  welfare  of  the  infant ;  and  that  this  can  be 
better  guarded  and  protected  by  the  court  of  chancery,  under  its  peculiar 
jurisdiction,  than  by  a  court  of  law  upon  habeas  corpus.1     Chancellor 

1  The  People  v.  Chegaray,  18  "Wend.  4  Mercein  v.  The  People,  25  Wend.  105. 

637.    The  People  v. 19  id.  16.  s  Id.  101. 

The  King  v.  De  Manneville,  5  East,  221.  6  People  v.  Mercein,  3  Hill,  400. 

Wellesley  v.  Beaufort,  2  Puss.  Ch.  1.  7  Matter  of  Waldron,  13  J.  P.  421,  per 


8  King  v.  Greenhill,  4  Ad.  &  Ellis,  624.    Thompson,  Ch.  J. 
s  The  People  v.  Mercein,  25  Wend.  93, 


94. 


Ch.  8.J  Infants.     Guardianship.  619 

Kent,  in  an  early  case  before  him  on  a  habeas  corpus,  remarked  that  the 
object  of  the  habeas  corpus  was  to  deliver  from  improper  restraint,  and 
not  to  settle,  in  a  summary  way,  a  question  of  guardianship ;  and  that 
when  an  infant  was  too  young  to  form  a  judgment,  then  the  court  is  tc 
exercise  a  discretion  for  him.1 

The  legislature  have,  however,  provided  that  when  husband  and  wife 
shall  live  in  a  state  of  separation,  without  being  divorced,  and  shall  have 
any  minor  child  of  the  marriage,  the  wife,  if  sue  be  an  inhabitant  of  this 
state,  may  apply  to  the  supreme  court  for  a  habeas  corpus  to  have  such 
minor  child  brought  before  it.  On  the  return  of  the  writ,  the  court,  on 
due  consideration,  is  empowered  to  award  the  charge  and  custody  of  the 
child  to  the  mother  for  such  time,  under  such  regulations  and  restrictions, 
and  with  such  provisions  and  directions,  as  the  case  may  require.2  The 
supreme  court  is  authorized,  after  the  making  such  order,  to  annul,  vary 
or  modify  the  same.3  In  1818,  an  act  was  passed,  and  which,  as  revised 
in  1830,  is  still  in  force,4  empowering  the  chancellor,  a  justice  of  the 
supreme  court,  or  any  circuit  judge,  upon  habeas  corpus,  to  deliver  to  the 
husband  or  to  the  wife  who  has  not  joined  the  society  of  Shakers,  any 
child  of  the  marriage  detained  by  the  said  society.  By  force  of  this  stat- 
ute, the  parent  who  joins  the  said  society,  forfeits  the  right  of  custody 
of  the  children,  in  favor  of  the  parent  who  does  not  become  a  member  of 
that  society. 

The  habeas  corpus  act,  as  revised  by  the  legislature  in  1830,  abrogates 
the  provisions  of  the  common  law,  in  regard  to  the  writ  treated  of  in  that 
article,  except  so  much  and  such  parts  of  it  as  may  be  necessary  to 
carry  into  full  effect  the  provisions  therein  contained ;  and  requires  the 
proceedings  to  be  in  conformity  to  the  act.s  But  the  chancellor  was  of 
opinion,  that  the  power  of  the  chancellor  to  issue  a  habeas  corpus  was 
not  derived  solely  from  the  statute,  but  was  an  inherent  power  in  the 
court,  derived  from  the  common  law.6  And  he  thought,  with  Chancellor 
Kent  and  the  judges  whose  opinions  have  been  cited,  that  the  writ  of 
habeas  corpus  is  not,  either  by  the  common  law,  or  under  the  provisions 
of  the  Revised  Statutes,  the  proper  mode  of  instituting  a  proceeding  to 
try  the  legal  right  of  a  party  to  the  guardianship  of  an  infant.7 

The  principle  on  which  the  parental  custody  of  infant  children  rests, 
was  elaborately  discussed  in  a  recent  case  in  the  court  of  errors,  by  a 

1  Matter  of  Woolstencraft,  4  J.  Ch.  R.  *  L.  of  1818,  p.  38.     2  R.  S.  149,  §  4-7. 

83.     The  People  v.  Mercein,  8  Paige,  47.  &  2  R.  S.  573,  §  73. 

Matter  of  McDowell,  8  J.  R.  328.  •  The  People  v.  Mercein,  8  Paige,  55. 

a  2  R.  S.  148,  9,  §§1,2.  7  Id. 

*  Id.  g  3 


620  Of  Persons  under  Disability.  [Ch.  8. 

learned  senator,  since  a  member  of  the  supreme  court.1  It  was  shown 
that  by  the  law  of  nature,  the  father  has  no  paramount  right  to  the 
custody  of  his  child,  over  its  mother ;  and  that  the  authority  of  both  is 
subordinate  to  that  of  the  state ;  that  there  is  no  parental  authority 
independent  of  the  supreme  power  of  the  state  ;  that  the  former  is  derived 
from  the  latter;  and  the  authority  of  government  must  be  so  exercised 
as  to  consult  the  welfare,  comfort  and  interest  of  the  child  during  the 
period  of  its  minority.  The  decision  of  the  court  of  king's  bench  in  the 
case  of  the  King  v.  Manneville,  in  1804,  already  cited,  and  which  was 
followed  in  England  in  numerous  other  cases  down  to  1836,2  establishing 
the  paramount  right  of  the  father  to  the  custody  of  his  infant,  in  cases 
where  the  interest  and  welfare  of  the  infant  called  upon  the  court  to 
commit  it  to  the  custody  of  the  mother,  was  a  departure  from  the  earlier 
cases,  and  was  never  the  law  in  this  state. 

It  is  generally  supposed  that,  by  the  common  law,  the  father  could  not 
make  a  testamentary  disposition  of  the  guardianship  of  his  infant  children, 
and  was  not  authorized  to  do  so  till  the  12  Charles  2,  ch.  14.  This  stat- 
ute, drawn  by  Lord  Hale,  enabled  the  father,  but  not  the  mother,  to  dis- 
pose of  the  guardianship  of  the  child  until  twenty-one.3  Under  this  stat- 
ute, it  was  held  by  Lord  Hardwicke,  that  the  guardianship  so  created  did 
not  terminate  till  the  infant  arrived  at  twenty-one,  though  he  married 
before  that  time.4  A  different  rule  prevailed  with  respect  to  a  female, 
whose  guardianship  terminated  by  marriage  within  age.  This  statute 
was  adopted  in  this  state,5  and  was  revised  in  1830.6  By  the  statute 
as  revised,  every  father,  whether  of  full  age  or  a  minor,  of  a  child  likely 
to  be  born,  or  of  any  living  child  under  the  age  of  twenty-one  years  and 
unmarried,  is  empowered  by  deed  or  last  will,  duly  executed,  to  dispose 
of  the  custody  and  tuition  of  such  child,  during  its  minority,  or  for  any 
less  time,  to  any  person  or  persons,  in  possession  or  remainder.  The 
statute  enacts  that  every  such  disposition,  from  the  time  it  shall  take 
effect,  shall  vest  in  the  person  or  persons  to  whom  it  shall  be  made,  all 
the  rights  and  powers,  and  subject  him  or  them  to  all  the  duties  and 
obligations  of  a  guardian  of  such  minor,  and  shall  be  valid  and  effectual 

1  Mercein  v.  The  People,  25  "Wend.  103,  3  Bac.  Abr.  tit.  Guardians,  A. ;  of  guar- 
104,  per  Paige.     2  Fonb.  Eq.  B.  2,  pt.  2,  dians  by  statute,  1  Mad.  Ch.  Pr.  364. 
cfc.  2,  §  1  and  notes.  4  Mendes  v.  Mendes,  3  Atk.  625. 

2  Ex  parte  Skinner,  J.  B.  Moore's  P.  6  1  K.  &  E.  181.  1  P.  L.  of  1813,  368. 
278;   of   McClellan,   1    Dowling's  Prac.  6  2  R.  S.  150. 

Cas.  81;  of  Ball  and  Ball,  2  Sim.  35;  of 
the  King  v  Greenhill,  4  Ad.  &  Ellis,  624. 


Cb.  8.J  Infants.     Guardianship.  021 

against  every  person  claiming  the  custody  or  tuition  of  such  minor,  as 
guardian  in  socage  or  otherwise.1 

This  right  of  the  father  extends  only  to  the  appointment  of  a  guardian 
for  his  legitimate  children,  and  not  to  a  natural  child,  or  to  a  grand 
child,2  or  to  one  with  respect  to  whom  he  stands  in  loco  parentis.  The 
power  of  appointment  of  a  guardian  is  not  conferred  upon  the  mother, 
though  the  father  be  dead.  In  such  a  case,  indeed,  she  is  the  guar- 
dian by  nature,  but  in  that  character  has  no  right  to  the  personal  estate 
of  her  child.  The  guardianship  extends  only  to  the  person.3  Though  a 
grandfather  has  no  right  to  appoint  a  guardian  for  his  grandchild,  yet,  as 
was  said  by  Lord  Hardwicke,  he  may  give  his  estate  upon  such  condition 
as  he  pleases ;  and  there  are  instances  where  the  grandfather  has  given 
his  estate  to  a  grandchild,  and  appointed  guardians  of  his  estate  and  per- 
son ;  and  if  the  father  did  not  submit  to  the  will,  the  court  has  made  the 
father's  opposition  work  a  forfeiture  of  his  son's  estate.4 

There  were  at  common  law  three  kinds  of  guardianship  ;  guardian  by 
nature,  guardian  by  nurture,  and  guardian  in  socage.5  Guardian  by  na- 
ture is  the  father,  and  on  his  death  the  mother.6  This  guardianship  con- 
tinues to  the  age  of  twenty-one  years  of  the  child,  and  extends  only  to  the 
custody  of  the  person.  Guardian  by  nurture  occurs  only  when  the  infant 
has  no  other  guardian,  and  belongs  exclusively  to  the  parents,  first  to 
the  father  and  then  to  the  mother,  and  terminates  when  the  infant  arrives 
at  the  age  of  fourteen  years,  in  the  case  of  both  males  and  females.  As 
it  is  concurrent  with  guardianship  by  nature,  it  is  in  effect  merged  in  the 
more  durable  title  of  guardian  by  nature.7  Guardian  in  socage  extends 
both  to  the  lands  and  the  person  of  the  infant.8  It  applies  only  to  such 
lands  as  he  acquires  by  descent ;  and  the  common  law  gave  this  guardi- 
anship to  the  next  of  blood  of  the  infant  to  whom  the  inheritance  could 
not  possibly  descend.  This  guardianship  ceases  when  the  child  arrives 
at  the  age  of  fourteen,  unless  he  fails  at  that  time  to  select  another  guar- 
dian, in  which  latter  case  it  extends  till  the  infant  arrives  at  the  age  of 
twenty-one  years.  This  guardianship  in  socage  cannot  arise  unless  the 
infant  is  seised  of  lands  held  in  socage.     It  has  gone  into  disuse,  andean 


1  2  R.  S.  150,  §  2.  v.  Stone,  7  id.  354.     2  Fonb.  B.  2,  i>t.  2, 

1  Fullerton  v.  Jackson,  5  J.  Ch.  R.  278.  ch.  2,  §  2,  n.  h. 

1  Hyde  v.  Stone,  7  Wend.  354.     Genet  •  Co.  Litt.  88  b. 

v.  Talmadge,  1  J.  Ch.  R.  3.  7  Id. 

4  Blake  v.  Leigh,  Ambl.  30G.    5  J.  Ch.  8  Byrne  v.  Van   Rocsen,  5  J.  R.  06. 

R.  278.  Jackson  v.  Vredenberg,   1  id.  159,  1G3 

1  Combs    v.   Jackson,    2    "Wend.    153.  Jackson  v.  De  Walts,  7  id.  157. 
Fonda  v  Van  Home,  15  id.  631.     Hyde 


622  Op  Persons  under  Disability.  [Ch.  8. 

hardly  be  said  to  exist  in  this  country.  The  substitution  of  allodial  for 
socage  tenures,  and  the  change  of  the  law  of  descent,  would  seem  to  be 
incompatible  with  guardianship  in  socage.1  Nevertheless  it  has  been 
provided  by  the  Revised  Statutes,  that  where  an  estate  in  lands  shall  be- 
come vested  in  an  infant,  the  guardianship  of  such  infant,  with  the  rights, 
powers  and  duties  of  a  guardian  in  socage,  shall  belong,  1  st  to  the  father 
of  the  infant ;  2d,  if  there  be  no  father,  to  the  mother ;  3d,  if  there  be 
no  father  or  mother,  to  the  nearest  and  eldest  relative  of  full  age,  not 
being  under  any  legal  incapacity ;  and  as  between  relatives  of  the  same 
degree  of  consanguinity,  males  shall  be  preferred.  To  every  such  guar- 
dian, all  statutory  provisions  that  are  or  shall  be  in  force,  relative  to 
guardians  in  socage,  shall  be  deemed  to  apply.  But  it  is  further  pro- 
vided, that  the  rights  and  authority  of  every  such  guardian  shall  be  super- 
seded in  all  cases  when  a  testamentary  or  other  guardian  shall  have  been 
appointed  under  the  provisions  of  the  third  title  of  the  eighth  chapter  of 
part  second;2  that  is,  by  the  deed,  or  last  will  of  the  father  of  the  infant, 
or  in  default  thereof,  by  the  surrogate  of  the  county  where  the  minor 
resides. 

There  are,  in  truth,  now  but  two  kinds  of  guardians  in  this  state — one  by 
common  law,  and  the  other  by  the  statute.  The  guardian  by  statute,  is 
that  appointed  by  the  deed  or  last  will  of  the  father,  or  in  his  default,  by 
the  surrogate  of  the  county  where  the  minor  resides.3  The  surrogate 
has  no  jurisdiction  to  appoint  a  guardian  for  an  infant  in  the  lifetime  of 
the  father  ;  nor  has  he  a  right  to  appoint  against  the  nomination  of  the 
infant  if  he  be  of  the  age  of  fourteen  years,  or  upwards  ;4  nor  without 
notice  to  the  relatives  of  the  infant  if  he  be  under  the  age  of  fourteen 
years,  and  there  be  any  relatives  residing  in  the  county  where  the  appli- 
cation is  made.5  His  power  is  essentially  one  of  exclusion,  if  the  nomi- 
nation be  deemed  unsuitable,  whether  it  be  made  by  the  minor  or  his 
relatives. 

The  guardian  appointed  by  the  surrogate  has  the  same  power  as  is 
possessed  by  a  testamentary  guardian.  And  the  surrogate,  having  ac- 
quired jurisdiction  of  the  subject,  has  the  same  power  to  allow  and  appoint 
guardians,  as  was  possessed  by  the  chancellor,  and  as  is  now  possessed  by 
the  supreme  court,  to  which  the  general  chancery  jurisdiction  has  been 
assigned  by  the  constitution.6 

1  Const.  1846,  art.  1,  §§  12, 13.  1 E.  S.  6  2  R.  S.  150,  §  5.  Morehouse  v.  Cooke, 
718.  1   Hopk.   226.     Underhill  v.   Dennis,  9 

2  1  R.  S.  718.    2  id.  150.  Paige,  202. 

*  2  R.  S.  150.  6  2  R.  S.  151,  §  6.     Quere,  whether  he 

*  Sherman  v.  Ballou,  8  Cowen,  304.         has  a  right  to  appoint  again:*'  tie  nnnji- 


Ch.  8.]  Infants.     Guardianship.  623 

The  mode  of  practice  before  the  surrogate  in  this  respect,  and  of  appeal 
from  his  orders  to  the  supreme  court,  belong  to  treatises  of  another  kind. 
It  may  be  proper  to  add,  that  for  greater  caution  the  legislature  have 
declared  that  every  guardian  in  socage,  and  every  general  guardian, 
whether  testamentary  or  appointed,  shall  safely  keep  the  things  that  he 
may  have  in  his  custody  belonging  to  his  ward,  and  the  inheritance  of 
his  ward,  and  shall  not  make  or  suffer  any  waste,  sale  or  destruction  of 
such  things,  or  of  such  inheritance,  but  shall  keep  up  and  sustain  the 
houses,  gardens,  and  other  appurtenances  to  the  lands  of  his  ward,  by  and 
with  the  issues  and  profits  thereof,  or  with  such  other  moneys  belonging 
to  his  ward  as  shall  be  in  his  hands,  and  shall  deliver  the  same  to  his 
ward,  when  he  comes  to  his  full  age,  in  as  good  order  and  condition  at 
least,  as  such  guardian  received  the  same,  inevitable  decay  and  injury 
only  excepted ;  and  he  shall  answer  to  his  ward  for  the  issues  and  profits 
of  real  estate,  received  by  him,  by  a  lawful  account.1  The  guardian  who 
makes  or  suffers  any  waste,  sale,  or  destruction  of  the  inheritance  of  his 
ward,  shall  lose  the  custody  of  the  same  and  of  his  ward,  and  shall  forfeit 
to  the  ward  treble  damages.2 

The  various  species  of  guardian  which  have  been  mentioned,  have  been 
superseded,  in  practice,  by  the  guardian  appointed  by  the  court  of  chan- 
cery, in  this  state,  and  since  1846,  by  the  supreme  court  under  its 
chancery  powers,  or  by  the  guardian  appointed  by  the  surrogate,  or  by 
testamentary  guardians.  The  latter  are  not  very  common ;  and  although 
the  surrogate's  court  affords  a  convenient  jurisdiction  for  the  appointment 
ol!  guardians,  and  the  bringing  them  to  account,  in  the  cases  falling 
w'thin  its  province,  yet  the  jurisdiction  of  the  supreme  court,  as  a  court 
of  equity,  possessing  the  general  jurisdiction  of  the  late  court  of  chancery, 
mer  minors  and  their  estates,  is  the  most  fit  tribunal  for  the  exercise  of 
this  authority.  Its  power  in  this  respect  is  general,  and  has  been  long 
and  unquestionably  settled.3 

It  is  owing  to  this  general  jurisdiction  that  the  late  court  of  chancery, 
and  now  the  supreme  court,  may  discharge  or  change  a  guardian  appoint- 
ed by  the  surrogate,  or  a  testamentary  guardian  appointed  by  the  father.4 


aaUon  of  tho  minor  ?   Sherman  v.  Ballou,  a  Id. 

8  Cowen,  304,  which  arose  under  the  act  3  De  Manneville  v.  De  Manneville,  10 

of  1813,  (1  R.  L.  454,  §  30,)  and  which  did  Ves.  G3.     Eyre  v.  The  Countess  of  Shafts- 

not  contain  the  provision  of  2  R.  S.  151,  bury,  2  P.  Wins.  118. 

§  0.     White  v.  Poinioy,  7  Barb.  640.  4  Ex  parte   Crumb,   2  J.  Ch    R.  439. 

1  2  R.  S.  153.  Matte'  -»f  Andrews,  1  id.  99. 


G24  Of  Persons' under  Disability.  [Oh.  8. 

It  has  been  repeatedly  held  that  such  guardians  are  as  much  under  the 
superintendence  of  a  court  of  equity  as  a  guardian  in  socage.1 

The  ground  on  which  courts  of  equity  act,  in  these  cases,  is  upon  its 
general  jurisdiction  over  infants  and  their  estates,  and  upon  the  doctrine  of 
trusts.  A  guardian,  by  whomsoever  appointed,  is  but  a  trustee,  and  in 
that  character  is  amenable  for  a  breach  of  trust  to  the  court  of  chan- 
cery, and,  like  other  trustees,  liable  to  be  displaced,  and  to  have  another 
appointed  in  his  stead.2  Independently  of  the  statute,  the  surrogate  has 
no  jurisdiction  over  the  guardian,  appointed  by  him,  as  a  trustee,  but  he 
is  clothed  with  authority  by  the  Revised  Statutes  to  call  him  to  account, 
and  to  remove  him  for  misconduct  or  incompetency,  and  to  appoint 
another.3  The  supreme  court  has  jurisdiction  in  this  matter,  at  common 
law,  and  independently  of  the  statute,  whether  the  guardian  be  appointed 
in  the  one  way  or  the  other. 

The  insolvency  of  the  guardian  and  of  one  of  his  sureties,  has  been 
held  to  be  a  sufficient  cause  for  his  removal.4  So,  it  seems,  is  a  gross 
mismanagement  of  the  trust  estate.  Intemperance  of  the  guardian  is 
also  a  good  ground  for  his  removal.5 

A  guardian  has  the  legal  power  to  sell  or  dispose  of  the  personal  esta'te 
of  his  ward,  in  any  manner  he  may  think  most  conducive  to  the  purposes 
of  the  trust  ;  and  a  purchaser  who  deals  fairly  has  a  right  to  presume 
that  he  acts  for  the  benefit  of  his  ward,  and  is  not  bound  to  inquire  into 
the  state  of  the  trust,  nor  is  he  responsible  for  the  faithful  application  of 
the  money,  unless  he  knew,  or  had  sufficient  information  at  the  time,  that 
the  guardian  intended  to  misapply  it,  or  was  in  fact,  by  the  very  trans- 
action, applying  it  to  his  own  purposes.6 

With  respect  to  the  real  estate  of  the  ward  the  rule  is  different.  The 
guardian  has  no  power  or  control  over  it,  farther  than  as  concerns  the 
rents  and  profits.7  He  may  lease  the  lands  of  his  ward,  during  his  minor- 
ity, but  no  longer.13  He  cannot,  without  leave  of  a  court  of  equity,  change 
the  nature  of  the  estate,  by  turning  real  estate  into  personal,  or  personal 
into  real.9 

The  trust  of  the  guardian  is  not  satisfied  by  the  mere  preservation  of 

1  Beaufort  v.  Berty,  1  P.  Wms.  704.        4  Matter  of  Cooper,  2  Paige,  34. 
Eyre  v.  Countess  of  Shaftsbury,  2  id.  107.        B  Kettletas  v.  Gardner,  1  Paige,  488. 
Wellesley  v.  Beaufort,  2  Ross.  Ch.  R.  1.  6  Field  v.  Scbieffelin,  7  J.  Ch.  R.  150. 

2  Beaufort  v.  Berty,  1  P.  Wms.  704.  '  Genet  v.  Talraadge,  1  J.  Ch.  R.  561 
Frederick  v.  Frederick,  id.  721.     1  R.  S.  2  R.  S.  153,  §  20. 

730,  §  70.  Disbrow  v.  Henshaw,  8  Cowen,  8  Pond  v.  Curtis,  7  "Wend.  45. 

S49.  9  Id.     7  J.  Ch.154.    Inwood  v.  Twyne 

3  Mattor  of  Andrews,   1  J.  Cb.  R.  99.  Ambl.  419. 
2  R.  S.  152,  §§  12,  14-17. 


Ch.  3.]  Infants.     Guardianship.  625 

the  property  of  the  ward,  with  its  accumulations.  "While  it  is  his  dutj 
to  keep  the  money  of  his  ward  where  it  will  be  productive,  and  to  applj 
the  interest  only,  if  sufficient,  to  his  maintenance  and  the  proper  expen- 
diture of  the  trust,1  he  should  not  support  his  ward  in  idleness,  when  he 
is  capable  of  earning  his  own  living,2  unless  he  is  preparing  for  future 
usefulness  by  obtaining  an  education.3  This  rule  depends  much  on  the 
social  position,  wealth  and  prospects  of  the  ward. 

The  parent  or  guardian  has  the  right  to  change  the  domicilof  his  child 
or  ward,  provided  such  change  is  in  good  faith ;  but  this  right  is  subordi- 
nate to  that  of  the  court  of  chancery  to  prevent  an  improper  removal  of  an 
infant  out  of  the  state.  The  court,  however,  will  not  interfere  with  the 
natural  right  of  a  parent  over  his  child,  except  in  a  very  special  case.4 
Where  a  father  appointed  a  testamentary  guardian  for  his  children,  who 
were  all  under  the  age  of  seven  years,  and  directed  the  guardian  to  re- 
move them  to  the  state  of  Ohio,  and  to  invest  their  property  there  upon 
certain  trusts  which  were  illegal  by  the  laws  of  New- York  where  the 
children  were  residing  with  their  father  at  the  time  of  his  death,  and  the 
widow  refused  to  go  with  them  to  the  state  of  Ohio,  and  asked  to  have 
them  remain  with  her  in  this  state,  the  court  restrained  the  guardian 
from  taking  the  children  from  their  mother,  and  removing  them  out  of  the 
state,  until  further  order.5 

Where  a  testamentary  guardian  holds  a  fund  for  the  sole  benefit  of  his 
wards,  in  his  character  of  guardian,  to  be  invested  for  their  use,  the  court 
of  chancery  may  change  the  investment  from  that  which  is  directed  by 
the  testator,  where  it  is  for  the  benefit  of  the  infants  that  such  change 
should  be  made,  even  without  the  consent  of  such  guardian.6 

From  the  relation  that  the  guardian  stands  to  his  ward,  it  is  obvious 
that  the  interest  of  the  latter  would  not  be  safe  if  dealing  with  the  trust 
property  by  the  guardian  were  not  viewed  with  jealousy.  We  have 
shown  elsewhere  that  the  trustee  cannot  make  purchases  where  his  inter- 
ests and  duty  conflict.  And  the  cestui  que  trust  ha3  a  right  to  affirm  the 
sale  and  hold  the  trustee  to  his  bargain,  or  to  disaffirm  it  and  have  the 
property  resold.  The  same  rule  applies  to  the  relation  of  guardian  and 
ward.7 

While  the  guardian  is  thus  prevented  from  speculating  in  the  trust 
estate  for  his  own  benefit,  and  was  formerly  deprived  of  all  compensation, 

1  De  Peyster  v.  Clarkson,  2  Wend.  77.  *  Wood  v.  Wood,  5  Paige,  59G. 

Roberts  v.  Jackson,  3  Yerg.  77.  6  Id. 

a  Clark  v.  Clark,  8  Paige,  158.    2  Fonb.  e  Wood  v.  Wood,  5  Paigf ,  596* 

Eq.  B.  2,  pt.  2,  ch.  2,  §  3.  '  Ante,  186,  607. 

3  Id. 

Eq.  Jun.  7U 


626  Of  Persons  under  Disability.  [Ch  8. 

except  a  mere  indemnity  for  his  expenses,  the  Revised  Statutes  have  since 
allowed  to  him,  in  addition  to  his  expenses,  the  same  rate  of  compensation 
that  is  allowed  to  executors  and  administrators." 

2.  We  proceed  now  to  consider  the  doctrine  of  courts  of  equity  with  re-  - 
Bpect  to  the  maintenance  of  infants.     This  subject  may  be  considered 
with  reference  to  the  power  of  the  court  at  common  law,  and  its  power 
under  the  statute. 

It  is  laid  down,  as  a  general  rule,  that  a  parent  at  common  law  is  under 
a  natural  obligation  and  duty  to  furnish  necessaries  for  his  infant  chil- 
dren, and  has  a  correspondent  right  to  their  services  while  such  sup- 
port is  afforded.2  The  law  of  nature,  which  requires  the  parent  thus  to 
support  his  infant  offspring,  designates  his  own  house  as  the  place  where 
that  duty  shall  be  performed.3  Hence,  where  the  parent  is  willing  to  sup 
port  his  infant  child,  and  a  relative  without  his  request,  but  with  his 
•assent,  receives  his  child  into  his  family  and  supports  it  as  a  child  of  his 
own,  no  agreement  of  the  father  to  pay  for  such  support  can  be  implied.4 
It  has  been  doubted  whether,  independently  of  the  statutes  on  the  sub- 
ject, there  is  any  legal  obligation  on  the  parent  to  maintain  his  child, 
and  whether  a  third  person  affording  a  support  to  the  child,  can  maintain 
an  action  against  the  parent  for  reimbursement,  except  upon  the  ground 
of  contract,  express  or  implied.5 

If  the  child  be  of  an  age  sufficient  to  maintain  himself,  and  be  in  por- 
fect  health,  the  court  of  chancery  will  not  compel  the  parent  to  furnish 
means  for  the  professional  education  of  the  infant.6 

The  cases  in  which  the  court  of  chancery  interferes,  with  respect  to  the 
maintenance  of  infants,  are  where  the  infant  himself  possesses  property 
which  may  be  reached  by  the  court,  or  where  there  is  a  specific  fund  for 
maintenance.  Even  in  these  cases,  if  the  father  is  sufficiently  competent, 
the  court  will  give  no  direction  with  regard  to  the  infant's  maintenance 
out  of  his  own  estate,  during  the  life  of  the  father,  unless  the  circum- 
stances of  the  case  be  peculiar.7  The  circumstances  which  will  induce 
the  court  to  break  in  upon  the  property  of  the  infant  for  his  support, 
during  the  life  of  the  parent,  are,  that  the  parent  is  totally  incapable, 

1  2  R.  S.  153,  §  22.     Id.  93,  §  58.    Mc-  *  Id.    Yan  Valkenburgh  v.  Watson,  13 

TVhorter  v.  Benson,  Hopk.  28.  J.  R.  480. 

8  Raymond  v.  Loyl,  10  Barb.  484.     In  5  Raymond  v.  Loyl,  10  Barb.  483. 

tbe  matter  of  Ryder,  11  Paige,  187.  But-  6  In  the  matter  of  Ryder,  11  P^iea 

ler  v.  Butler,  3  Atk.  60.  188. 

*  Chilcott  v.  Trimble,  13  Barb.  502.  '  Jackson  v.  Jackson,  1  Atk.  515. 


Ch.  8.]  Infants.     Maintenance.  627 

from  poverty '  or  from  the  number  of  his  children  he  is  bordering  upon 
necessity,  and  the  child  is  in  danger  of  perishing  from  want.' 

It  was  said  on  one  occasion,  by  Lord  Hardwicke,  that  where  a  legacy  is 
given  to  a  child  by  a  relative,  the  father  cannot  make  use  of  it  in  the 
maintenance  of-such  child,  but  must  provide  for  him  out  of  his  own  pocket. 
Nor  can  he  set  him  out  in  the  world,  or  put  him  out  an  apprentice,  or 
clerk,  with  the  money  arising  from  the  legacy,  and  if  he  does  so  it  shall 
not  be  allowed  to  him.2 

Under  what  circumstances,  or  in  what  manner,  and  to  what  extent,  the 
principal  of  a  sum  devised  to  children,  after  the  death  of  their  mother, 
to  whom  the  interest  was  payable  during  life,  will  be  broke  in  upon,  and 
directed  to  be  paid,  by  the  executors,  for  their  present  maintenance  and 
education,  being  infants,  and  also  for  the  discharge  of  debts  contracted  by 
the  mother  for  their  past  maintenance,  was  considered  and  discussed  by 
Chancellor  Kent ;  and  he  came  to  the  conclusion  that  where  the  sum  de- 
vised was  small,  the  principal  might  be  applied,  if  necessary ;  otherwise 
the  interest  only.3  He  further  held  that  a  retrospective  allowance  for 
maintenance  was  admissible,  contrary  to  some  early  cases  before  Lord 
Thurlow,  who  subsequently  changed  his  opinion.4  And  Chancellor  Wal 
worth,  in  a  more  recent  case,  said,  that  to  entitle  the  father  even  to  an 
inquiry  as  to  the  propriety  of  making  an  allowance  for  past  support,  he 
should  state  a  special  case,  showing  the  extent  of  his  means  at  the  time 
such  support  was  furnished,  and  the  particulars  of  the  extraordinary  ex- 
penditures for  the  actual  benefit  of  the  infant,  which  created  an  equitable 
claim  in  his  favor.5  The  application  therefore  is  not,  it  should  seem,  a 
natter  of  course,  but  depends  on  the  peculiar  circumstances  of  the  case. 

The  ground  on  which  courts  of  equity  interfere,  and  make  allowances 
ii  matters  of  this  kind,  is  the  general  good  of  the  infant ;  and  the  power 
of  the  court,  in  this  respect,  springs  from  its  general  jurisdiction  over 
infants  and  their  estates.  It  is  a  settled  principle  of  the  court  of  chan- 
cery; said  the  chancellor,  in  a  recent  case,6  "  not  to  allow  maintenance  on 

1  Butler  v.  Butler,    3  Atk.  60.     Cud-  Iredell's  Eq.  R.  354.     In  the  matter  of 

worth  v.  Thompson,  3  Desaus.  258.  Burke,  4  Sandf.  Ch.  R.  617. 

1  Darley  v.  Darley,  3  Atk.  399.  *  Matter  of  Bostwick,  4  J.  Ch.  R.  104. 

8  Matter  of  Bostwick,  4  J.  Ch.  R.  100.  Session  v.  Shaw,  9  Ves.  285.      Chalmers 

Harvey  v.  Earvey,  2  P.  "Wms.  21.     Bar-  v.  Goldwin,  11  Ves.  1.    Maberly  v.  Tur- 

low  v.  Grant,  1  Vern.  255.     Walker  v.  ton,  14  Ves.  499. 

■Wetherell,   6   Ves.   474.     McDowell  v.        *  In  the  matter  of  Kane,  2  Barb.  Ch. 

Caldwell,  2  McCord's  Ch.  R.  58.   Teague  R.  380.     Ex  parte  Bond,  2  Myl.  &  K.  439. 
v.  Dendy,  2  id.  211.    Sweet  v.  Sweet,        c  Matter  of  Kane,  supra. 
Speer'u  Eq.  R.  309.     Long  v.  Norcoua,  2 


628  Of  Persons  under  Disability.  [Ch.  & 

behalf  of  infants,  out  of  their  property,  unless  it  will  be  for  their  benefit 
to  order  such  allowance.  And  it  is  not  for  the  benefit  of  the  infants  to 
direct  an  allowance  out  of  their  general  estate  when  they  have  any  other 
sufficient  provision  for  their  maintenance,  or  a  right  which  can  be  enforced, 
to  demand  it  from  other  sources.  The  court,  therefore,  will  not  direct  an 
allowance  to  the  father  of  the  infants  out  of  their  estate,  when  he  is  of 
sufficient  ability  to  maintain  and  bring  them  up  without  it,  in  reference 
to  their  situation  and  prospects  in  life  ;  having  a  due  regard  to  the  claims 
of  others  upon  his  bounty."  Lord  Eldon  said,  in  a  celebrated  case,  towards 
the  close  of  his  judicial  administration,  "  The  court  considers  the  duty  of 
the  father  imposes  thus  much  upon  him,  that  if  he  be  himself  of  ability 
to  maintain  his  children  and  to  provide  for  them  according  to  their  ex 
pectations,  be  their  fortunes  what  they  may,  it  says  you  shall  provide  for 
them  out  of  your  own  means,  and  not  encroach  upon  the  property  of  the 
children."1 

There  is  a  qualification  of  this  rule  which  Lord  Eldon  notices  in  the 
same  case,  that  where  the  court  takes  away  from  the  father  the  care  ani 
custody  of  his  children,  it  is  not  in  the  habit  of  calling,  in  aid  of  their 
own  means,  the  property  of  the  father.2  But  this  supposes  their  own 
means  to  be  ample. 

An  allowance  for  maintenance  will  not  be  made  until  that  which  has 
been  provided  by  the  testator  has  been  exhausted.  Thus,  where  a  testa- 
tor bequeathed  an  annuity  to  his  widow,  during  the  minority  of  hi3 
children,  together  with  a  distributive  share  of  his  estate,  after  thkt 
period,  in  lieu  of  dower,  and  for  the  further  purpose,  and  upon  the  ex- 
press trust,  that  she  should  take  care  of,  educate  and  maintain  the 
children  during  their  minorities,  it  was  held  that  the  court  was  not 
authorized  to  order  a  further  allowance  to  be  made  out  of  the  infants'  es- 
tates to  the  widow,  for  their  support,  until  the  fund  bequeathed  to  her  for 
that  purpose  was  exhausted.3 

Maintenance  for  infants  can  only  be  allowed  by  the  court  out  of  funds 
belonging  to  them.  It  cannot  be  charged  upon  the  property  of  other 
persons.  But  where  a  fund  is  given  absolutely  to  several  infants  as  a 
class,  with  the  benefit  of  survivorship,  if  either  of  them  dies  before  the 
time  appointed  for  the  distribution  of  the  fund,  as  the  chance  of  survi- 
vorship is  equal,  the  court  may  allow  maintenance  out  of  the  fund,  for  the 


1  Wellesley  v.  Beaufort,  2  Russ.  R.  28.        '  Matter  of  Davidson,  6  Paige,  136. 
'Id. 


Ch.  8.j  Infants.     Maintenance.  629 

benefit  of  the  infants  equally,  while  all  who  are  interested  therein  continue 
to  be  minors.1 

The  husband  is  not  bound  to  maintain  his  wife's  children  by  a  former 
husband,2  nor  is  the  mother,  married  to  a  second  husband,  obliged  to 
maintain  the  children  by  her  first  husband ;  but  is  entitled  to  an  allow- 
ance for  maintenance  from  the  interest  of  their  fortunes.3 

The  cases  which  have  been  considered,  are  where  the  order  for 
maintenance  has  been  made  out  of  the  income  of  the  infant's  property  ; 
or  where  the  capital  of  his  personal  property  has  been  broken  into.  In- 
dependently of  the  statute,  the  court  of  chancery  had  no  power  to  direct 
the  sale  of  infants'  real  estates  for  their  support,  education  or  maintenance.4 

The  necessity  of  reaching  the  real  estate  of  infants  for  their  own  sup- 
port was  often  felt,  and  occasional  relief  was  granted  by  special  acts  of 
the  legislature,  applicable  only  to  particular  cases.  These  applications 
becoming  frequent,  the  legislature,  at  length,  in  1814,  passed  a  law, 
authorizing  the  chancellor,  upon  the  application  by  petition  of  an  infant 
by  his  next  friend,  or  of  the  guardian  of  such  infant,  to  direct  a  sale  of 
the  real  estate  of  the  infant,  if  he  should  deem  it  proper,  for  the  main- 
tenance or  education  of  such  infants.5  In  the  following  year,6  the  power 
was  so  enlarged  as  to  authorize  the  court,  on  a  like  application,  to  direct 
a  sale,  if  it  should  satisfactorily  appear  to  the  chancellor  that  the  interest 
of  the  infant  would  be  promoted  thereby  ;  but  it  provided  that  nothing 
contained  in  the  act  should  authorize  the  sale  or  disposition  of  any  lands 
or  term,  against  the  provisions  of  any  last  will  or  conveyance.  Under 
these  statutes,  the  chancellor  held,  in  1824,  that  a  «ale  of  real  estate 
sho'ild  not  be  ordered  on  account  of  an  expectation  of  an  increased  in- 
come, but  there  should  be  some  special  reasons  showing  the  propriety  of 
the  sale.7  This  led  to  a  modification  and  increase  of  the  power  devolved 
upon  the  court ;  and  in  the  revision  of  1830  it  was  enacted,  that  whenever 
it  shall  appear  satisfactorily  that  a  disposition  of  any  part  of  the  real 
estate  of  such  infant,  or  of  his  interest  in  any  term  for  years,  is  necessary 
and  proper,  either  for  the  support  and  maintenance  of  such  infant,  or  for  his 
education  ;  or  that  the  interest  of  such  infant  requires,  or  will  be  substan- 
tially promoted  by  such  disposition,  on  account  of  any  part  of  his  said  prop- 
erty being  exposed  to  waste  and  dilapidation,  or  on  account  of  its  being 

1  Ex  parte  Kebble,  11  Ves.  604.  Errat  4  Rogers  v.  Dell,  6  mil,  415.  Baker  y. 
v.  Barlow,  14  id.  202.     Turner  v.  Turner,    Lorillard,  4  Conist.  266. 

4  Sim.  430.  "  L.  1814,  p.  128. 

2  Gay  v.  Ballon,  4  Wend.  403.  •  L.  of  1815,  p.  103. 

1  Billing^ley  v.  Critohet,  1  Bro.  C.  C.        7  Matter  of  Ma*on,  Hopk.  122. 
268. 


630  Of  Persons  under  Disability.  [Ch.  fc. 

■wholly  unproductive,  or  for  any  other  peculiar  reasons  or  circumstances, 
the  court  may  order  the  letting  for  a  term  of  years,  the  sale  or  other  dis- 
position of  such  real  estate  or  interest,  to  be  made  by  such  guardian  o 
guardians  so  appointed,  in  such  manner,  and  with  such  restrictions,  aa 
shall  be  deemed  expedient.1  A  subsequent  section  forbids  the  sale  01 
other  disposition  against  the  provision  of  any  last  will,  or  of  any  convey 
ance  by  which  such  estate  or  term,  was  devised  or  granted  to  such  infant. 
Tho  jurisdiction  over  such  sales  was  originally  given  to  the  chancellor 
alone.  Under  the  constitution  of  1821,  the  same  power  was  conferred  on 
the  circuit  judges  and  vice  chancellors.  The  constitution  of  1846,  hav- 
ing abolished  those  courts,  vested  the  same  jurisdiction  in  the  supremo 
court,  with  power  in  the  legislature  to  confer  upon  the  county  judge, 
equity  jurisdiction  in  special  cases.  And  by  the  Code  of  Procedure,  the 
sale,  mortgage,  or  other  disposition  of  the  real  property  of  an  infant,  situ 
ated  within  the  county  of  the  county  judge,  is  made  a  part  of  the  juris 
diction  of  that  office.2  So  that  the  county  judge  exercises  in  his  own 
county  concurrent  jurisdiction  with  the  supreme  court,  over  this  subject. 
From  the  multitude  of  officers  to  whom  this  jurisdiction  is  intrusted, 
there  is  great  danger  that  a  laxity  of  practice  will  prevail ;  and  there 
certainly  cannot  be  the  same  uniformity  in  the  proceeding,  as  when  the 
whole  was  supervised  by  a  single  tribunal. 

3.  We  proceed  next  to  notice  the  jurisdiction  of  equity  over  the  mar' 
riage  of  the  infant  wards  of  the  court. 

This  jurisdiction  has,  in  England,  given  rise  to  numerous  cases,  and  it 
appears  that  courts  of  equity  there  entertain  no  greater  jealousy,  nor 
show  more  resentment  against  any  thing,  than  the  unlawful  marriage  of 
infants.3  According  to  their  practice,  when  an  infant  is  committed  by 
the  court  to  the  custody  or  care  of  any  one,  such  committee  gives  a 
recognizance,  that  the  infant  shall  not  marry  without  leave  of  the  court, 
which  form  is  very  rarely  altered,  and  then,  on  special  circumstances  ;  so 
that  if  the  infant  marry,  though  without  the  privity,  or  knowledge,  oi 
neglect  of  the  committee,  yet  the  recognizance  is,  in  strictness,  forfeited 
whatever  favor  the  court,  upon  application,  may  think  fit  to  show  to  sue! 
committee,  when  he  appears  not  to  have  been  in  fault.4  No  suretiei 
appear  to  be  given,  but  as  the  recognizance  binds  the  lands  of  the  guar 


1  2  R.  S.  195,  §175.  ■  Eyre  v.  Countess  of  Shaftsbury,  2  P 

■  Const.  1846,  art.  6,  §  14.    Code,  §  30,    Wras.  111. 
■ub.  6.  4  Id.  112.     Dr.  Davis'  case,  1  P.  Wma 

698. 


Ok  8. |  Infants.     Marriage.  631 

dian,  from  the  time  of  its  enrollment,  it  is  probably  an  ample  guaranty 
In  this  state  no  such  recognizance  is  required  of  the  guardian  appointed 
by  the  court  of  chancery.  The  practice  in  the  late  court  of  chancery,  a3 
prescribed  by  the  r.ules  of  the  court,  was  to  require  from  the  general 
guardian  of  an  infant  appointed  by  the  court,  a  bond  in  a  penalty  of 
double  the  amount  of  the  personal  estate  of  the  ward,  and  of  the  gross 
amount  or  value  of  the  rents  and  profits  of  the  real  estate  during  his 
minority,  together  with  at  least  two  sufficient  sureties,  each  of  whom 
should  be  worth  the  amount  specified  in  the  penalty  of  the  bond,  over 
and  above  all  debts ;  or  instead  of  personal  security,  the  guardian  might 
give  security  by  way  of  mortgage  on  unincumbered  real  property,  of  the 
value  of  the  penalty  of  his  own  bond  only.  But  the  court,  in  its  discre- 
tion, might  vary  the  security,  where,  from  special  circumstances,  it  migt 
be  found  for  the  interest  of  the  infant.1  The  condition  of  the  bond  in 
the  time  of  Chancellor  Kent  and  subsequently  was,  that  the  guardian 
should  faithfully  and  justly  perform  his  trust  as  such  guardian,  and  duly 
observe  such  orders  as  the  chancellor  should  make  in  the  premises  in 
relation  to  such  trusts.2  The  condition  of  the  bond  of  the  guardian 
appointed  by  the  surrogate  is,  that  he  will  faithfully  in  all  things  dis- 
charge the  duty  of  a  guardian  to  such  minor  according  to  law,  and  that 
he  will  render  a  true  and  just  account  of  all  moneys  and  property  received 
by  him,  and  of  the  application  thereof,  and  of  his  guardianship  in  all 
respects,  to  any  court  having  cognizance  thereof,  when  thereunto 
required.3 

Although  the  form  of  the  security  given  by  the  guardian,  on  his  appoint- 
ment, does  not  indicate  that  the  ward  shall  not  be  permitted  to  marry 
without  the  leave  of  the  court,  yet  the  reasons,  in  other  respects  adverse 
to  such  marriage,  exist  here  as  well  as  in  England;  and  the  jurisdiction 
of  the  court,  to  prevent  the  improper  marriage  of  the  ward,  and  to  punish 
those  who  contribute  to  bring  about  such  marriage,  is  unquestionably  a 
part  of  our  jurisprudence.4  This  seems  to  have  been  conceded  by  Chan- 
cellor Kent  on  several  occasions.5  In  one  case  an  infant,  under  the  age 
of  12  years,  ignorant  of  the  duties  which  the  marriage  if  legal  would 
impose,  and  considering  the  matter  as  a  frolic,  agreed  to  marry  the 
defendant,  a  man  of  the  age  of  23  or  24  years,  and  the  marriage  cere- 
mony was  performed  by  a  Baptist  clergyman  the  same  day.     The  infant 

1  Rule  148  of  Chancellor  Walworth.  366.     Udall  v.  Kenney,  5  J.  Ch.  R.  464; 

5  Hoffman  on  Master,  133,  370.   Blake's  S.  C.  in  Error,  3  Cowen,  590. 

Ch.  Pr.  328  et  seq.  6  Aymar  v.  Roff,  3  J.  Ch.  R.  49.    F.lall 

*  2  R.  S.  151,  §  8.  v.  Kenney,  3  Cowen.  590. 

*  Van  Duzer  v.  Van  Dozer,  6   Paige, 


632  Of  Persons  under  Disability.  [Cli.  S 

then  returned  to  her  mother,  and  being  informed  of  the  duties  of  the 
marriage  state,  and  what  it  was  in  her  power  to  do,  immediately  declared, 
in  the  presence  of  a  master  in  chancery,  her  dissent  from  the  marriage, 
and  her  unwillingness  to  be  bound  by  it,  and  her  election  to  live  under 
the  protection  of  the  plaintiff;  and  this  declaration  was  reduced  to  writing! 
and  signed  by  the  infant,  and  attested  by  the  master  and  others.  This 
declaration  was  shown  to  be  voluntary  and  uninfluenced  by  her  parents 
or  others,  and  was  repeated  in  court,  and  the  marriage  disavowed.  No 
meeting,  or  intercourse  of  any  kind,  had  taken  place  between  the  infant 
and  the  defendant.  On  a  bill  filed  for  that  purpose,  the  infant,  after  an 
examination  in  open  court,  was  placed  under  the  protection  of  the  court, 
as  a  ward  thereof,  and  the  defendant  was  ordered  to  refrain  from  holding 
any  conversation,  or  from  any  intercourse,  or  correspondence,  with  the 
said  infant,  as  long  as  the  order  remained  in  force,  under  the  pain  of 
incurring  a  contempt.  As  no  further  order  was  asked  in  the  case,  nothing 
further  was  done ;  but  it  appears,  by  the  report,  that  the  chancellor  acted 
upon  the  doctrine  of  Lord  Hardwicke,  in  Eyre  v.  Countess  of  Shaftsbury, 
already  cited.1 

On  another  occasion,  before  the  same  learned  chancellor,  on  an  appli- 
cation under  the  act  of  April,  1814,2  and  of  March,  1815,3  for  the  sale  of 
the  real  estate  of  a  married  infant  female,  the  chancellor  held  that  the 
acts  in  question  were  not  applicable  to  the  sale  of  the  real  estate  of  the  in 
fant  wife,  as  it  was  never  the  practice  of  the  court  to  appoint  a  guardian 
to  an  infant  feme  covert.  The  guardianship  of  the  daughter,  he  observed, 
determines  with  her  marriage ;  and  there  was  no  instance  in  which  a 
guardian  had  been  appointed  to  a  female  infant  after  marriage.4  And  he 
intimated  a  concurrence  of  opinion  with  Lord  Eldon,  that  a  female  ward 
of  the  court  was  not  discharged,  upon  her  marriage,  from  the  protection 
of  the  court,  without  a  special  order  to  that  effect.5 

Though,  as  intimated  by  Chancellor  Walworth,  the  guardianship  of  the 
infant  wife  belongs  to  the  husband,  it  by  no  means  follows  that  an  infant 
female,  a  ward  of  the  court,  may  marry  without  its  consent.6 

The  occasions  for  the  interference  of  the  court  of  equity  in  relation  to  the 
marriage  of  wards  of  the  court  have,  in  this  country,  been  rare.  But  the 
necessity  of  the  jurisdiction,  and  the  policy  of  the  exercise,  are  the  same 
in  all  countries,  where  a  due  regard  is  had  to  the  marriage  relation.     In 

1  2  P.  Wms.  Ill,  102.  "  Mendes  v.  Mendes,  3  Atk.  625.  Belt's 

2  Bess.  37,  ch.  108.  Sup.  86,  87.    Matter  of  AYhittaker,  4  J. 
1  Sess.  38,  ch.  106.  Ch.  R.  380. 

4  Matter  of  Whittaker,  4  J.  Ch.  R.  38(1.  6  In  the  matter  of  Van  Cott,  1  Paige^ 
Lord  Shaftsbury's  case,  1  Ves.  100.  489. 


Oh.  8.]  Infants.     Marriage.  632 

England  it  is  of  frequent  occurrence.  Lord  Eldon  remarked  in  Wellesley 
v.  Beaufort,  in  1827.  that  a  case  came  before  him  not  long  before,  in 
which  an  infant  of  a  considerable  family,  the  representative  of  a  very  old 
baronet,  was  about  to  be  entrapped  into  a  marriage  with  a  young  woman, 
the  daughter  of  a  common  bricklayer  ;  the  court  would  not  allow  that  to 
take  place,  and  stopped  the  marriage.1  The  paternal  care  of  the  court  is 
sometimes  as  essential  for  the  protection  of  the  male,  as  it  more  frequently 
is,  for  that  of  the  female  ward. 

The  effect  of  marriage  at  common  law,  upon  the  personal  estate  of  the 
wife,  presents  strong  considerations  in  favor  of  the  interposition  of  the 
court  in  favor  of  its  infant  female  ward.  Accordingly,  in  England,  where 
infants  under  the  care  of  the  court  are  upon  a  treaty  of  marriage,  the 
consent  of  the  court  ought  to  be  obtained.  When  applied  to  for  this  pur- 
pose, the  court  generally  makes  a  reference  to  a  master,  to  see  whether 
the  settlement  proposed  is  proper  ;  and  if  it  is  found  to  be  improper,  the 
court  will  not  give  the  infant  k  ave  to  marry.2 

The  jurisdiction,  in  cases  falling  within  it,  is  invariably  exercised  for 
the  benefit  of  the  ward.  When  a  lady  having  property  in  court,  marries 
after  she  is  of  age,  the  court  does  what  it  can  to  obtain  a  proper  provision 
for  her  ;  having,  as  there  is  no  contempt  committed,  no  means  of  enforc- 
ing a  settlement,  if  the  husband  does  not  seek  to  lay  his  hands  upon  the 
property  ;  but  if  the  marriage  is  a  contempt,  the  court,  vindicating  its 
jurisdiction,  is  enabled  by  imprisonment  to  compel  the  husband  to  make 
a  proper  settlement.3 

In  considering  a  question  of  a  contempt  for  marrying  a  ward  of  the  court 
without  leave,  the  court  acts  upon  a  distinction  between  an  unsuitable 
match  brought  about  for  the  sake  of  the  property  of  the  ward,  and  such 
an  one  as  is  between  persons  of  equal  rank  and  condition.  In  the  first 
case,  should  a  beggar  marry  the  ward,  for  the  sake  of  her  fortune,  the 
court  would  not  permit  him  to  touch  it.  But  if  the  marriage,  though 
against  the  rules  of  the  court,  brings  together  persons  of  equal  rank  and 
fortune,  and  as  considerable  a  settlement  is  made  by  the  one  as  by  the 
other,  the  equivalent  provision  made  by  the  husband  will  be  taken  into 
consideration  by  the  court  in  administering  its  animadversion.4  The 
usual  settlement  seems  to  be,  to  settle  one-fifth  of  the  dividends  and  inter- 
est of  the  property  upon  the  husband,  and  the  residue  upon  the  wife,  for 
her  sole  and  separate  use,  during  their  joint  lives,  with  a  clauso  to  pre- 
vent anticipation,  and  a  power  to  the  wife  to  give  another  fifth  to  the  hus* 

'  2  Russell,  14.  8  Ball  v.  Coutts,  1  Yes.  &  B.  299. 

2  Smith  v.  Smith,  :i  Atk.  305.  *  Id.  303. 

Eo.  Jur  80 


634  Of  Peksons  unier  Disability.  [Ch.  8 

band  by  "will ;  the  residue  subject  to  a  provision  for  maintenance,  to 
accumulate,  and  with  the  principal  to  go  to  the  children  at  the  ages  of 
twenty-one  or  marriage  ;  a  power  to  the  wife  to  charge,  by  way  of  appoint- 
ment to  each  child,  a  share  not  exceeding  the  share  of  each  child  by  the 
first  marriage.  In  case  of  no  children,  the  husband  surviving,  the  limit- 
ation is,  in  default  of  appointment,  to  her  next  of  kin,  exclusive  of  the 
husband.1 


SECTION  H. 

OF    MARRIED    WOMEN:    AND    HEREIN,    OF    DIVORCE,    ALIMONY,    iC. 

In  the  former  part  of  this  treatise,  while  discussing  the  doctrine  of 
trusts  in  manage  settlements,  we  showed  the  effect  of  the  marriage,  at 
common  law,  upon  the  property  of  the  wife  ;  and  the  rights  created  and 
duties  imposed  upon  the  husband  by  means  of  that  relation.  And  it  was 
shown  that  courts  of  equity,  through  the  medium  of  the  doctrine  of  trusts, 
preserved  the  property  of  married  women  during  coverture  to  their  sep- 
arate use,  without  the  control  of  their  husband,  and  beyond  the  reach  of 
the  husband's  creditors.2  And  it  was  intimated  that  some  other  branches 
of  the  same  subject  would  fall  more  naturally  under  our  consideration, 
when  we  came  to  treat  of  the  protection  which  courts  of  equity  afforded 
to  married  women,  against  the  disabilities  imposed  by  the  strict  rules  of 
the  common  law. 

Courts  of  equity,  while  they  fully  recognize  the  marital  rights  of  the 
husband  at  law,  treat  the  husband  and  wife  as  distinct  persons,  having 
capacity,  to  a  certain  extent,  of  contracting  with  each  other,  of  holding 
property  separate  and  distinct  from  each  other,  and  as  capable  of  suing 
and  being  sued  by  each  other. 

The  most  important  of  these  rights  is  that  which  maintains,  in  favor 
of  the  wife,  notwithstanding  her  coverture,  the  dominion  over  her  prop- 
erty as  a  feme  sole,  with  a  right  of  disposition  over  it  during  her  life,  and 
of  transmitting  it  at  her  death  to  the  varied  objects  of  her  regard,  by  a  last 
will  and  testament.  The  power  thus  to  hold  property,  real  and  personal, 
to  her  own  separate  and  exclusive  use,  is  often,  and  perhaps  generally, 

1  1  Mad  Ch.  Pr.  280,  281.   Chassaingv.        J  Ante,  Chap.  YII,  Sec.  4,  p.  472  et 
Parsonage,  5  Ves.  17.     4  id.  386.     5  id.    seq. 
398.     8  id.  74.     2  Fonb.  Eq.  B.  2,  pt.  2, 
ch.  2,  §  1  and  notes. 


Ch.  8.J  Married  Women.     "Wife's  Equity.  635 

reserved  to  her  by  the  marriage  articles,  or  by  an  actual  settlement  made 
before  marriage  ;  and  in  that  case,  the  terms  of  the  agreement  regu- 
late the  rights,  interests  and  duties  of  the  respective  parties.  In  likr 
manner,  property,  real  or  personal,  may  be  secured  to  a  married  woman, 
for  her  separate  and  exclusive  use,  after  marriage  ;  or  it  may  come  to  her 
by  inheritance,  or  by  gift,  grant,  devise  or  bequest,  from  any  person  other 
than  her  husband,  and  under  the  statute,  be  held  to  her  sole  and  sepa- 
rate use,  with  a  right  on  her  part  to  convey  and  devise  the  same.1 
Through  the  aid  of  a  court  of  equity,  or  without  the  intervention  of  trus- 
tees, her  rights  are  now  fully  protected,  for  equity  suifers  no  right  to 
fail  for  the  want  of  a  trustee,  but  will  appoint  a  trustee,  or  hold  that  the 
husband  is  the  trustee  for  his  wife.2 

It  is  proposed  now  to  treat  briefly,  in  the  first  place,  of  the  equity  of 
the  wife  to  a  provision  in  her  favor,  out  of  her  property,  not  secured  by 
any  marriage  settlement,  but  which  the  husband  cannot  reach  but  through 
the  aid  of  a  court  of  equity  ;  and  afterwards  to  notice  some  other  points 
in  which  the  rights  of  married  women  are  protected  by  the  mode  in 
which  that  court  treats  the  relation  of  husband  and  wife. 

The  principle  was  stated  by  Chancellor  Kent,  in  an  early  case  before 
him,  that  where  the  aid  of  a  court  of  equity  was  requisite  to  enable  the 
husband  to  take  possession  of  the  wife's  property,  he  must  do  what  is 
equitable,  by  making  a  reasonable  provision  out  of  it  for  her  maintenance 
and  that  of  her  children,  and  without  that,  the  aid  of  the  court  would  not 
be  afforded.  The  practice  was  stated  to  be,  for  the  husband,  on  a  refer- 
ence, to  make  proposals  of  a  settlement  before  a  master,  and  on  the 
coming  in  of  his  report,  the  court  judged  of  its  sufficiency.3  In  the  case 
before  him,  the  father  of  the  plaintiff's  wife  died  intestate,  leaving  five 
children  and  a  large  real  and  personal  estate.  The  bill  prayed  that  the 
defendant  might  account  and  pay  over  to  the  plaintiff  the  amount  be- 
longing to  his  wife.  From  the  report  of  the  master  it  appeared  that 
there  was  a  considerable  sum  in  the  defendant's  hands  belonging  to  the 
plaintiff 's  wife  as  one  of  the  distributees  ;  that  the  plaintiff  was  a  mariner 
and  poor ;  that  the  wife  lived  harmoniously  with  him,  and  was  supported 
by  him  when  he  was  able,  but  that  he  was  then  out  of  employment,  and 
she  desired  the  money  to  remain  in  the  hands  of  the  defendant,  who  was 
her  brother,  where  it  was  safe.     The  chancellor  directed  that  $1000  bo 

JL.  of  1848,  p.  307.  L.  of  1849,  p.  354.  Mad.  Ch.  Pr.  37G.  Strong  v.  Skin- 
629.  ner,  4  Barb.  546. 

a  Blanchard  v.  Blood,  2  Barb.  S.  C.  R.        '  Howard  v.  Moffat,  2  J.  Ch.  R.  206. 


536  Of  Persons  under  Disability.  [Ch.  8 

secured  far  the  wife  and  her  child,  and  that  the  residue,  nearly  as  much 
more,  be  paid  over  to  the  husband. 

The  rule  it  seems  is  the  same,  whether  the  husband  applies  to  the  court 
himself,  or  a  suit  for  the  wife's  debt,  legacy,  portion,  &c.  is  brought  by 
his  legal  representatives.  The  extent  of  the  provision  will  depend  on  the 
sircumstances  of  the  case. 

It  was  in  the  same  case  stated,  that  if  the  husband  could  lay  hold  of 
the  property  without  the  aid  of  a  court  of  equity,  he  might  do  so,  as  tho 
court  had  not  the  means  of  enforcing  a  settlement  by  interfering  with  his 
remedies  at  law.'     This  doctrine  has  been  subsequently  repeated.2 

The  doctrine  thus  expounded  by  the  chancellor  was  well  settled  in 
England  to  the  same  effect,  for  above  a  century,3  and  has  been  repeatedly 
acted  upon  in  this  state.4 

It  may  be  well,  before  adverting  to  the  acts  of  1848  and  1849,  for  the 
more  effectual  protection  of  the  property  of  married  women,  to  notice, 
more  at  large,  the  doctrine  with  respect  to  the  wife's  equity  existing  an- 
tecedently to  those  statutes. 

This  jurisdiction  of  courts  of  equity  was  first  assumed  in  cases  where 
it  was  necessary  for  the  husband,  or  those  claiming  under  him,  to  apply 
to  the  court  for  assistance  in  order  to  obtain  possession  of  the  property 
of  the  wife ;  which  assistance  the  court,  acting  upon  the  maxim,  that  he 
who  asks  equity  must  do  equity,  withheld,  until  an  adequate  settlement 
was  made.5  In  consequence  of  this  origin  of  the  jurisdiction,  it  was 
thought  that  the  equit}r  of  the  wife  to  a  settlement  was  confined  to  those 
cases  in  which  the  husband,  or  those  claiming  under  him,  were  plaintiffs. 
But  ever  since  the  commencement  of  the  present  century,  this  restriction 
upon  the  jurisdiction  has  been  exploded,  and  the  wife  has  been  permitted 
actively  to  assert  her  equity  as  plaintiff.6  In  a  recent  case,  a  married 
woman  who  had  left  her  husband,  and  was  living  separate  from  him,  but 

1  Howard  v.  Moffatt,  2  J.  Ch.  R.  208.  Van  Epps  v.  Van  Dusen,  4  id.  64.  Drum- 

s  Udall  v.  Kenney,  3  Cowen,  591.  mond  v.  Magee,  id.  318.  UdalW.  Kenney, 

3  Oxenden  v.  Oxenden,  2  Vera.  494.  5  id.  464.     3  Cowen,  590.     Glee  v.  Fish- 

Bosvill  v.  Brander,  1  P.  Wms.  459.     Ja-  er,  6  J.  Ch.  R.  33.     Haviland  v.  Myers,  id. 

cobson  v.  Williams,  2  id.  382.     Adams  v.  25.     Same  v.  Bloom,  id.  178.     Carter  v. 

Pierce,  3  id.  13.     Brown  v.  Elton,  id.  202.  Carter,  1  Paige,  463.     Smith  v.  Kane,  2 

Grey  v.  Kentish,  1  Atk.  280.     Jewson  v.  id.  303.     Van  Duzer  v.  Van  Duzer,  6  id. 

Moulson,  2  id.  417.     Burdon  v.  Dean,  2  366.     Martin  v,  Martin,  1  Comst.  473. 

Ves.  jr.  607.     Oswell  v.  Probert,  id.  680.  6  Bosvill  v.  Brander,  1  P.  Wms.  459. 

Brown  v.   Clark,  3  id.  166.     Lumbe  v.  6  Lady  Elibank  v.  Montolieu,  5  Ves. 

Milner,  5  Ves.  517.     Ball  v.  Coutts,  1  Ves.  737.     Stnrgis  v.  Champneys,  5  Myl.  & 

&B.  300.     Murray  v.  Elibank,  13  Ves.  1.  C.  105.     Eedes  v.  Eedes,   11    Sim.  569 

*  Turrell  v.  Turrell,  2  J.  Ch.  R.  391.  Hanson  v.  Keating,  4  Hare,  6. 


Ch.,  8.]  Married  Women.     Wife's  Equity.  G37 

not  in  a  state  of  adultery,  was  held  to  be  entitled  to  a  settlement  out 
of  a  sum  of  stock  to  which  her  husband  had  become  entitled  in  her  right. 
The  action  was  brought  by  her  in  her  own  name,  against  her  husband  and 
the  trustees,  in  whom  the  stock  was  vested. 

The  equity  of  the  wife  to  a  settlement  is  binding,  not  only  upon  her 
husband,  but  also  upon  his  assignees  in  bankruptcy,  under  the  insolvent 
debtor's  act,  or  under  a  general  assignment  for  the  payment  of  his  debts.1 
And,  notwithstanding  the  doubts  once  expressed  on  the  subject,  her 
equity  is  superior  to  that  of  the  assignee  of  the  husband  for  valuable  con- 
sideration.2 

Originally  this  jurisdiction  of  courts  of  equity  was  extended  in  favor  of 
the  wife,  with  respect  only  to  her  equitable  property,  which  could  be 
reached  by  her  husband,  or  those  claiming  under  him,  in  no  way  except 
through  the  medium  of  the  court.  The  principle  was  afterwards  expand- 
ed so  as  to  embrace  all  the  property  of  the  wife,  whether  legal  or  equita- 
ble, which  was  the  subject  of  action,  or  over  which  the  court  had  acquired 
jurisdiction.3 

It  is  also  a  part  of  the  doctrine  on  this  subject,  that  whenever  a  woman 
insists  upon  her  equity  to  a  settlement,  it  will  always  be  extended  to  her 
children.4  In  the  leading  case  on  this  subject,  the  right  of  the  children 
to  a  provision  out  of  the  property  of  their  mother,  under  a  decree  direct- 
ing a  settlement  to  her  and  her  children,  was  upheld  by  the  court,  not- 
withstanding the  death  of  the  mother  before  the  report  of  the  master,  no 
act  having  been  done  by  the  mother  to  waive  the  equity.5  All  the  cases 
show  that  where  a  settlement  is  made  upon  the  wife,  her  children  are 
embraced  within  it.  Nevertheless,  the  equity  to  a  settlement  is  strictly 
personal  to  the  wife.  If,  therefore,  she  dies  before  asserting  it,  her  chil- 
dren cannot  insist  upon  a  settlement.  She  may  also,  at  any  time  before 
the  settlement,  waive  her  right  to  it,  and  thus  defeat  the  interests  of  he; 
children. 

The  children  have  no  equity  of  their  own.  Their  equity  is  obtained 
throujin  the  consent  of  the  mother.    It  is  against  the  father  that  the  court 


1  Jewson    v.   Moulson,    2    Atk.    420.  s  Milner  v.  Colmer,  2  P.  Wms.  639. 

Bunion  v.  Dean,  2  Ves.  jr.  607.     Stnrgis  Sturgis  v.  Chauipneys,  5  Myl.  &  Cr.  97. 

v.  Champneys,  5  Myl.  &  Cr.   97.     Van  Hanson  v.  Keating,  4  Hare,  1.     Ilavi- 

Epps  v.   Van  Dusen,   4  J.  Ch.  E.   64.  land  v.  Bloom,  6  J.  Ch.  E.  178. 

Haviland  v.  Myers,  6  id.  25.     Mumford  4  Howard  v.  Moffat,  2   J.  Ch.  R.  206. 

v.  Murray,  1  Paige,  620.  Udall  v.  Ivenney,  3  Cowen,  591.  608. 

'  Macaulay    v.    Philips,    4    Ves.    19.  6  Murray  v.  Lord  Elibauk,  13  Ves.  1. 
Wright,  v.  Morley,  11  Ves.  12.     Udall  v 
Kennev,  3  Cowen,  607,  608. 


638  Of  Persons  under  Disability.  [Ch.  b. 

exercises  jurisdiction  to  exclude  him  from  those  rights  which  the  law  would 
otherwise  give  him ;  and  then  the  court  deals  with  those  rights  as 
between  the  mother,  whose  property  it  is,  and  as  between  the  children  of 
the  marriage,  in  such  a  way  as  may  be  thought  for  the  interests  of  tho 
family.1 

In  all  cases  the  equity  of  the  wife  is  personal,  and  it  arises  upon  the 
vesting  of  the  legacy  in  her.  It  may  be  defeated  by  a  voluntary  payment 
by  the  executors  to  her  husband,  who  has  a  legal  right  to  receive  it  and 
give  a  discharge  for  it.  If  the  payment  is  to  be  made  through  the  me- 
dium of  the  court,  her  equity  will  be  enforced,  if  she  desires  it,  but  not 
otherwise.  She  may  abandon  it,  in  which  case  her  children  can  claim  noth- 
ing ;  and  if  she  claims  it  for  herself,  the  court  requires  the  benefit  to  be 
extended  to  her  children.  Her  equity  and  the  equity  of  her  children  are 
treated  as  one  equity,  to  be  enforced  or  not  at  her  option.2 

But  suppose  the  wife  dies,  leaving  children,  before  the  decree,  but  after 
the  claim  to  a  settlement  has  been  allowed  :  The  question  will  then  arise 
between  the  husband,  or  those  succeeding  to  his  rights,  and  the  children. 
In  such  a  case,  the  right  of  the  children  depends  not  upon  the  question 
whether  their  mother,  had  she  been  living,  could  have  waived  the  settle- 
ment, but  whether  the  father  was  bound  by  it,  at  the  time  of  the  death  of 
his  wife.  If  the  husband  is  bound,  as  he  would  be  in  the  supposed  case, 
the  children  are  certainly  entitled.3  In  the  case  just  cited,  a  married 
woman  entitled  to  a  legacy  appeared  by  her  counsel  at  the  hearing  of  the 
cause,  and  claimed  her  equity  to  a  settlement  out  of  the  fund.  The  leg- 
acy was  directed  to  be  carried  to  the  separate  account  of  the  husband  and 
wife.  The  husband  was  a  bankrupt,  and  his  assignee  sold  his  interest  in 
the  legacy.  The  solicitor  for  the  purchaser  and  for  the  wife  agreed  to 
refer  the  claim  of  the  wife  to  their  counsel ;  and  the  counsel  determined 
that  she  was  entitled  to  a  settlement  of  the  moiety,  subject  to  the  costs. 
Before  any  further  steps  were  taken,  the  wife  died,  leaving  children  ;  it 
was  held  by  Sir  James  Wigram,  V.  Ch.,  that  the  husband  and  those  claim- 
ing under  him  were,  by  the  steps  which  had  been  taken,  bound  to  allow  a 
settlement  of  part  of  the  fund  upon  the  wife  and  children  ;  and  that,  upon 
the  death  of  the  wife,  the  children  were  entitled  to  the  portion  which 
would  have  been  settled. 

With  regard  to  the  amount  of  the  wife's  property  to  Ve  settled,  the  gen- 
eral rule  is,  that  one  half  shall  be  so  settled  ;  but  this  is  a  matter  which 

1  Hodgens  v.  Hodgens,  11  Bligh,  1ST.  S.        2  De  la  Garde  v.  Lempriere,  6  Beavan, 
104,    per    Lord    Cottenham.     And    see    344. 
Lloyd  v.  Williams,  1  Mad.  Ch.  R.  467.  '  Lloyd  v.  Mason,  5  Hare,  139. 


Oh.  8.]  Married  Women.     Wife's  Equity.  639 

rests  much  in  the  discretion  of  the  court,  which  will  take  into  considera- 
tion the  amount  of  the  wife's  fortune,  already  received  by  the  husband, 
or  any  previous  settlement  which  may  have  been  made.' 

This  equity  of  the  wife,  it  has  already  been  shown,  may  be  waived  by 
her.  It  may  also  be  barred  by  an  adequate  settlement  having  been  made 
upon  her,  but  not  by  an  inadequate  one,  unless  it  be  by  an  express  stipu- 
lation before  marriage.  It  will  constitute  a  valuable  consideration  for 
a  post-nuptial  settlement  by  the  husband  upon  the  wife,  which  will  be 
supported  in  equity  as  against  creditors.2  Where  the  husband  volunta- 
rily settles  upon  his  wife  personal  estate,  which  came  to  her  by  descent 
from  her  relatives,  to  no  greater  extent  than  the  court  of  chancery  would 
have  directed  him  to  do  upon  a  bill  filed  against  him  by  the  wife,  to  pro- 
tect her  equitable  claim  to  a  support  for  herself  and  her  children  out  of 
the  same,  such  voluntary  settlement  will  be  sustained  as  against  the  cred- 
itors of  the  husband;  although  it  is  void  as  to  other  property  contained  in 
the  same  conveyance  to  the  trustee.3 

The  wife's  equity  extends  to  a  debt  due  to  her  before  marriage,  and 
which  the  husband  has  not  reduced  to  possession ;  and  an  execution  creditor, 
comiug  into  a  court  of  equity  to  reach  it,  must  take  it  subject  to  the  wife's 
equity.4  Where  the  husband  has  violated  the  marriage  contract,  or  has 
been  guilty  of  an  act  which  entitles  the  wife  to  a  decree  for  a  divorce,  or 
a  separation  and  for  alimony,  she  is  in  equity  entitled  to  a  restoration  of 
the  property  which  the  husband  holds  by  virtue  of  his  marital  rights. 
And  a  court  of  equity,  upon  the  bill  of  the  wife,  filed  for  the  purpose  of 
obtaining  a  divorce  or  separation,  will  not  only  protect  her  right  to  such 
property  as  against  the  husband  himself,  but  also  as  against  judgment 
creditors,  and  others  who  do  not  stand  in  the  situation  of  bona  fide  pur- 
chasers without  notice  of  her  equitable  rights,  and  of  her  intention  to 
enforce  them  by  a  suit  for  a  divorce  or  separation.5 

So  where  the  husband  has  married  a  ward  in  chancery,  without  the  con- 
sent of  the  court  or  of  her  legal  guardian,  the  court,  upon  the  ground  of 
he  husband's  contempt,  has  jurisdiction  to  interfere,  upon  the  application 
of  the  friends  of  the  infant  wife,  even  without  her  consent,  to  restrain  the 
husband  and  his  creditors  from  intermeddling  with  her  estate,  until  a 
proper  settlement  is  made  for  the  support  of  the  wife  and  the  issue  of  the 
marriage.6 

1  Jewson  v.   Monlson,    2    Atk.    423.  3  Wickes  v.  Clarke,  8  Paige,  161. 

Brown  v.  Clark,  3  Ves.  106.  4  Smith  v.  Kane.  2  id.  303. 

1  Sal  way    v.    Sal  way,    Ambler,    692.  6  Van  Duzcr  v.  Van  Duzer,  6  id.  36tJ. 

"Wickes  v.  Clarke,   8    Paige,    161,    166.  "Id. 
Partridge  v.  Stevens,  10  Paige,  018,  624. 


G40  Of  Persons  under  Disability.  [Ch.  ft 

But  if  the  husband  has  been  guilty  of  no  contempt  in  acquiring  the 
legal  title  to  his  wife's  property,  nor  of  such  misconduct  as  to  entitle  her 
to  a  divorce  or  a  decree,  or  a  decree  for  a  separation  from  bed  and  board 
equity  cannot,  upon  the  application  of  the  wife,  interfere  with  her  hus- 
band's title  as  tenant  by  the  curtesy  initiate  in  the  wife's  property,  so  as 
to  place  it  beyond  his  reach  or  the  reach  of  his  creditors,  and  secure  it  for 
the  support  of  the  wife  and  her  children.1 

Before  noticing  some  other  points,  growing  out  of  marriage  settlements, 
and  the  separate  ownership  of  property  secured  thereby  to  the  wife,  it 
may  be  expedient  in  this  place  to  advert  to  some  recent  legislation  in  this 
state,  which  has  an  important  bearing  on  the  subject  which  we  have  been 
discussing. 

The  act  for  the  more  effectual  protection  of  the  property  of  married 
women,  passed  April,  1848,  (L.  of  1848,  p.  307,)  enacts,  that  the  real  ai:d 
personal  property  of  any  female  who  may  hereafter  marry,  and  which  she 
shall  own  at  the  time  of  marriage,  and  the  rents,  issues  and  profits  thereof, 
shall  not  be  subject  to  the  disposal  of  her  husband,  nor  be  liable  for  his 
debts,  and  shall  continue  her  sole  and  separate  property  as  if  she  were  a 
single  female.  The  second  section  enacts,  that  the  real  and  personal 
property,  and  the  rents,  issues  and  profits  thereof,  of  any  female  now  mar- 
ried, shall  not  be  subject  to  the  disposal  of  the  husband  ;  but  shall  be  her  sole 
and  separate  property  as  if  she  were  a  single  female,  except  so  far  as  thfi 
same  may  be  liable  for  the  debts  of  her  husband,  theretofore  contracted. 
And  the  third  section  as  amended  in  1849  (L.  of  1849,  p.  528)  enacts,  that 
any  married  female  may  take  by  inheritance,  or  by  gift,  grant,  devise  or  be- 
quest, from  any  person  other  than  her  husband,  and  hold  to  her  sole  and 
separate  use,  and  convey  and  devise  real  and  personal  property,  and  any 
interest  or  estate  therein,  and  the  rents,  issues  and  profits  thereof,  in  the 
same  manner  and  with  the  like  effect  as  if  she  were  unmarried,  and  the 
same  shall  not  be  subject  to  the  disposal  of  her  husband,  nor  be  liable 
for  his  debts.  This  statute  has  been  held  to  be  prospective,  and,  so  far 
as  it  may  be  supposed  to  affect  rights  already  vested  in  the  husband  by 
the  marriage,  to  be  unconstitutional  and  void.8  Though  it  has  been  spoken 
of  in  some  of  the  cases3  as  an  unwise  innovation,  it  is  believed  that  its 
wisdom  and  policy  will  be  vindicated  by  subsequent  events,  if  it  be  prop- 
erly administered. 

1  Van  Duzer  v.  VanDuzer,  6  Paige,  366.  3  Holmes  v.  Holmes,  4  Barb.  299,  per 

a  Holmes   v.   Holmes,    4    Barb.    295.  Barculo,  J.     American  Home  Missionary 

"White  v.  White,  5  id.  474.     Snyder  v.  Society    v.   Wadham,    10    id.    606,   per 

Snyder,  3  id.   621.     Perkins  v.  Cottrel,  Taylor,  J. 

15  id.  446. 


Ch.  8.J  Married  "Women.     Separate  Property.  641 

One  effect  of  the  act  is  to  take  from  the  husband  the  means  of  paying 
the  debts  contracted  by  the  wife  before  marriage.  At  common  law  the 
obligation  to  discharge  the  legal  liabilities  of  the  wife,  before  marriage,  was 
compensated  by  the  provision  which  vested  the  personal  property  and 
choses  in  action  of  the  wife,  in  the  husband,  by  virtue  of  the  marrkge. 
The  apparent  injustice  of  leaving  the  husband  liable  for  his  wife's  debts, 
while  the  means  of  payment  which  the  common  law  afforded  was  withheld, 
has  been  removed  by  the  act  of  1853,1  which  permits  actions  to  be  main- 
tained against  the  husband  and  wife  jointly,  for  any  debt  of  the  wife  con- 
tracted before  marriage,  but  directs  that  the  execution  on  any  judgment  in 
such  action  shall  issue  against,  and  such  judgment  shall  bind,  the  separate 
estate  and  property  of  the  wife  onty,  and  not  that  of  the  husband.  The 
statute  further  provides,  that  any  husband  who  may  thereafter  acquire 
the  separate  estate  and  property  of  his  wife,  or  any  portion  thereof,  by 
any  ante-nuptial  contract,  or  otherwise,  shall  be  liable  for  the  debts  of  his 
wife  contracted  before  marriage,  to  the  extent  only  of  the  property  so 
acquired,  as  if  the  act  had  not  passed. 

These  several  statutes  have  thus  altered  the  common  law,  with  respect 
to  the  rights  and  liabilities  of  the  husband,  growing  out  of  the  marriage 
relation.  The  husband  can  no  longer  lay  hold  of  the  wife's  property, 
which  comes  to  her  in  the  way  mentioned  in  the  statute  of  1849.  And  if 
he  and  his  wife  are  compelled  to  resort  to  a  court  of  equity  to  obtain 
fc,  there  would  seem  to  be  no  necessit}7  for  the  court  to  require  a  settle- 
ment to  be  made,  in  favor  of  the  wife,  since  the  property  all  belongs  to 
her,  without  any  deduction  for  the  benefit  of  the  husband.  The  wife's 
equity  is  thus  converted  into  a  legal  right ;  and  the  reason  why  any 
portion  of  it  should  be  for  the  husband's  benefit — that  is,  for  the  payment 
of  her  debts — is  removed  by  the  act  of  1853,  which  discharges  him  from 
that  liability,  except  to  the  extent  of  the  property  received  by  him,  under 
an  ante-nuptial  settlement. 

The  statutes  in  question  do  not  affect  the  title  of  the  husband  to  the 
wife's  services,  nor  to  her  earnings  in  her  business  or  occupation,  if  she 
carries  on  an  occupation  with  his  consent.  These  belong  to  the  husband, 
and  are  liable  for  his  debts,  as  before  the  statutes.2 

The  increase  of  property  owned  by  the  wife  before  marriage,  belongs 
to  her,  and  not  to  her  husband.  When  she  retains  the  possession  or  the 
right  of  possession  of  it,  the  fact  that  she  allows  her  husband  to  have  the 

1  Laws  of  1853,  p.  1057.  5  Lovett  v.  Robinson,  7  ITow,.  Pp.  R 

105. 
Eq.  Jur.  81 


642  Of  Persons  under  Disability.  [Cli.  8 

charge  and  management  of  it,  and  to  fatten  her  swine,  for  example,  will 
not  entitle  him  to  the  increase  of  her  animals,  or  the  pork  made  from  the 
swine,  but  they  will  belong  to  her.1 

If  chattels  be  purchased  by  the  husband,  the  title  vests  in  him  and  not 
in  her,  though  part  of  the  consideration  be  paid  by  her.2 

And  where  the  husband  was  permitted  by  his  wife  to  occupy  her  land, 
and  receive  and  dispose  of  the  products,  the  law  will  not,  in  the  absence 
of  proof  of  an  express  agreement  that  she  should  share  in  the  products, 
or  that  he  should  account  to  her,  imply  such  a  contract,  but  will  rather 
regard  her  as  having  made  a  gift  of  the  use  of  the  land  to  the  husband 
while  such  occupation  continued.3 

The  case  last  cited  admits,  by  implication,  that  the  wife  may  convey  a 
title  to  her  husband,  by  a  gift  inter  vivos,  of  her  personal  property, 
without  the  agency  or  intervention  of  a  court  of  equity.  The  court  surety 
would  not  presume  such  gift,  unless  such  gift  could  be  in  fact  made  by 
the  wife  to  her  husband,  notwithstanding  the  coverture.  The  language 
of  the  third  section  of  the  act  of  1849  is  broad  enough  to  admit  of  that 
construction.  But  a  different  rule  has  been  adopted  by  another  court 
with  respect  to  the  wife's  real  estate,  or  rather  with  respect  to  her  con- 
tingent right  of  dower,  and  it  has  been  held  that  a  married  woman  can- 
not during  coverture  convey  to  her  husband,  by  deed,  her  dower  right  in 
his  real  estate,  under  the  said  act ;  and  the  construction  was  adopted, 
that  she  might  convey  to  persons  other  than  her  husband,  but  not  to  him 
This  construction  leaves  in  force  the  common  law  rule,  that  husband  and 
wife  cannot  at  law  convey  to  each  other.4  Both  the  cases  last  mentioned 
were  cases  in  a  court  of  law,  and  decided  upon  common  law  principles. 

Whether  under  the  law  of  1848,  as  amended  in  1849,  a  married  woman, 
being  clothed  with  the  right  of  property,  either  by  ownership  antecedent 
to  the  marriage,  or  acquired  subsequently  by  inheritance,  or  by  gift,  grant, 
devise  or  bequest  from  any  person  other  than  her  husband,  may  dispose 
of  the  same  as  a  feme  sole,  without  the  intervention  of  a  court  of  equity, 
has  not  yet  been  authoritatively  decided  by  the  highest  court  of  the 
Btate ;  and  the  opinions  of  the  profession  on  the  subject  are  conflicting 
The  rule  of  the  common  law,  is  that  the  power  of  alienation  is  an  insep- 
arable incident  of  the  right  of  property,5  and  the  language  of  the  statute 


lVan  Sickle  v.  Van  Sickle,  8  How.        4  Graham  v.  Wyck,  14  Barb.  531. 

Pr.  R.  265.  *  American  Home  Missionary  Society 

*  Id.  v.  Wadham,  10  id.   601.    Bell's  Law  of 

'»  Id.  Property,  503. 


Cli.  8  j  Married  Women.     Separate  Property.  G43 

is,  without  limitation,  that  a  married  woman,  holding  property  to  her  sole 
and  separate  use,  may  c:>nvey  and  devise  the  same,  whether  it  be  real  or 
personal,  and  any  interest  or  estate  therein,  and  the  rents,  issues  and 
profits  thereof,  in  the  same  manner  and  with  the  like  effect,  as  if  she 
were  unmarried,  and  the  same  shall  not  be  subject  to  the  disposal  of  her 
husband,  nor  be  liable  for  his  debts.  The  statute  so  far  breaks  in  upon 
the  common  law  rule,  as  to  prevent  the  property  of  the  wife  from  becom- 
ing vested  in  the  husband,  or  made  subject  to  his  control  during  the 
coverture,  and  leaves  it  subject  to  her  disposition.  There  was  also  another 
rule  of  the  common  law,  that  a  married  woman  could  not,  daring  the 
coverture,  dispose  of  her  property  so  as  to  defeat  the  marital  rights  of 
her  husband,  without  his  assent.  Courts  of  equity,  at  an  early  day, 
encroached  upon  both  these  principles  of  the  common  law.  In  establish- 
ing the  doctrine  of  a  separate  estate  in  the  wife,  notwithstanding  the 
coverture,  they  infringed  upon  the  strict  rights  of  the  husband,  as  they 
were  expounded  by  the  common  law  courts.  Having  thus  established  the 
doctrine  that  the  wife  might  enjoy  a  separate  estate  during  the  coverture, 
as  a  feme  sole,  the  laws  of  property  attached  to  this  new  estate,  and  the 
power  of  alienation  was  annexed  to  it  as  an  inseparable  incident.  But 
equity  again  interposed,  and  by  another  violation  of  the  law  of  property, 
supported  the  validity  of  the  prohibition  against  alienation,  contained  in 
the  deed  or  will  under  which  she  derived  her  title,  when  it  was  clearly 
expressed.1  Hence  it  follows,  that,  in  relation  to  a  separate  estate,  held 
by  a  feme  covert,  without  the  prohibition  of  anticipation,  she  was  to  all 
intents  and  purposes  a  feme  sole;  equity  treating  property  given  to 
her,  for  her  separate  use,  without  restraint  of  alienation,  as  the  property 
of  a  feme  sole*"1 

We  must  doubtless  speak  with  caution  on  questions  growing  out  of  the 
laws  of  1848  and  1849,  which  have  not  already  been  discussed  in,  and 
decided  by,  the  courts.  If  we  are  at  liberty,  in  the  absence  of  adjudged 
cases,  to  conjecture  the  object  of  the  legislature  in  enacting  those  laws, 
we  should  incline  to  the  opinion,  that  it  was  to  abrogate  the  common  law 
rule  with  respect  to  the  rights  acquired  by  the  husband  through  his  mar- 
riage, to  the  property  of  his  wife ;  to  prevent  him  from  laying  his  hands 
on  it,  if  he  could  find  it,  and  treat  it  as  his  own,  as  was  formerly  in  his 
power ;  and  to  extend  to  her  property,  and  her  control  over  it  the  same 
principles  which  courts  of  equity  had  previously  adopted  with  respect  to 

1  Brandon  v.  Robinson,  18  Vos.  434.        v.   "Wadham,  10  Barb.  G02.    Strong-  v. 
*  American  ITome  Missionary  Society    Skinner,  4  id.  546. 


544  Of  Persons  under  Disability.  [Ch.  8, 

such  property  as  could  only  be  reached  by  its  aid ;  or  to  such  as  waa 
secured  to  her  by  marriage  settlement ;  or  to  such  as  belonged  to  her 
while  she  was  a  ward  of  the  court,  and  married  with  its  permission.  In 
those  cases,  indeed,  whether  the  property  of  the  female  was  large  or  small, 
the  whole  was  not  settled  to  the  use  of  the  wife  and  her  children,  but  a 
portion  of  it  was  left  to  the  husband.1  Under  the  statute,  however,  the 
whole  is  still  the  property  of  the  wife,  notwithstanding  the  marriage. 
Her  rights,  under  the  statutes,  therefore,  are  more  ample  than  those  pre 
served  to  her  by  courts  of  equity,  in  cases  where  it  was  administered  under 
its  rules. 

In  a  recent  case  it  has  been  held  that  a  married  woman,  since  the  acts 
in  question,  who  acquires  real  property  in  the  mode  therein  provided,  may 
convey  the  same  in  all  respects  as  a  feme  sole.  Her  husband  need  not 
be  a  party  to  the  deed  ;  and  her  acknowledgment  before  the  proper  officer 
is  sufficient,  without  a  private  examination  of  the  wife,  separate  and  apart 
from  her  husband,  required  in  other  cases.2 

But  the  statutes  in  question  have  not  relieved  the  wife,  during  cover- 
ture, from  her  disability,  at  common  law,  to  make  contracts,  except  as  to 
such  contracts  as  convey  or  devise  the  property.  She  is  not,  by  the  stat- 
ute, empowered  to  make  any  warranty,  or  to  enforce,  in  her  own  name, 
an  executory  contract  against  others.  She  cannot,  at  law,  make  herself 
liable  to  be  sued  for  breach  of  her  executory  agreements,  with  respect  to 
her  estate.  The  statute  has,  indeed,  prevented  a  contract,  made  before 
marriage  with  her  intended  husband,  from  being  discharged  by  the  mar- 
riage, and  enacts  that  it  shall  be  still  in  force,  after  such  marriage,  but 
has  provided  no  way  to  enforce  it,  or  to  give  damages  in  case  of  its  viola- 
tion on  the  part  of  the  husband.3  At  common  law,  if  either  was  indebted 
to  the  other  before  marriage,  their  subsequent  intermarriage  worked  a 
release  of  it,  on  the  principle,  that  husband  and  wife  are  but  one  person ; 
as  if  the  feme  obligee  take  the  obligor  to  husband,  it  was  a  release  in  law 
of  the  bond.4     This  latter  rule  has  doubtless  been  abrogated  by  the  statute. 

Although  the  question  has  not  yet  been  settled  by  the  courts,  it  is 
believed  that  the  benign  principles  of  equity  will  afford,  not  only  to  the 
wife,  but  to  others  dealing  with  her,  with  respect  to  her  property,  ade- 
quate relief,  for  any  violation  by  either  party  of  any  of  the  provisions  of 
the  contract.  Full  effect  cannot  be  given  to  the  statute,  unless  courts  of 
equity  apply  the  rules  which  prevailed  in  those  courts,  with  respect  to 

1  Iloward  v.  Moffat,  2  J.  Ch.  R.  206.  *  Clancy's  Eights  of  Women,  155,  156. 

Glen  v.  Fisher,  6  id.  33,  36.  Coke  Litt.  264,  b.     Strong  v.  Skmnerr  4 

5  Dlood  v.  Humphrey,  17  Barb.  660.  Barb.  552. 
•  Laws  of  1849,  p.  529,  §3. 


Ch.  8.J  Married  Women.     Separate  Property.  G45 

the  separate  property  of  the  wife,  before  the  act  of  1848,  to  property 
acquired  by  the  wife  in  the  manner  specified  in  the  statutes  of  1848 
and  1849. 

It  may,  therefore,  be  expedient  to  take  a  brief  survey  of  the  doctrine 
of  the  courts  of  equity,  with  respect  to  the  separate  property  of  married 
women,  before  the  passage  of  the  statutes  in  question.  This  is  the  more 
important,  as  doubtless  many  cases  will  arise,  which  must  be  decided  by 
the  former  law.  The  learned  reader  will  bear  in  mind  also,  that  with 
respect  to  recent  cases,  the  statutes  will,  to  a  slight  extent,  modify  the 
ancient  rules  ;  and  this  will  be  sufficiently  understood  without  repeating 
the  caution. 

It  is  a  general  principle,  firmly  established  in  the  equity  jurisprudence 
of  this  state,  that  a  feme  covert,  with  respect  to  her  separate  property,  is 
in  equity  considered  as  a  feme  sole.  Chancellor  Kent  inclined  to  the 
opinion  that  she  was  to  be  so  considered  only  to  the  extent  of  the  power 
clearly  given  to  her  by  the  marriage  settlement.  But  on  the  review  of 
the  same  case  in  the  court  of  errors,'  it  was  in  substance  declared,  that  a 
feme  covert  was  absolutely  a  feme  sole  in  respect  of  her  separate  prop- 
erty, when  she  was  not  specially  restrained,  by  the  instrument  under 
which  she  acted,  to  some  particular  mode  of  disposition  ;  and  it  Avas  held, 
that  although  a  particular  mode  of  disposition  was  specifically  pointed  out, 
it  would  not  preclude  her  from  adopting  any  other  mode  of  disposition, 
unless  there  were  negative  words  restraining  her  power  of  disposition  to 
the  very  mode  so  pointed  out.  The  learned  judge  who  delivered  the 
opinion  of  the  court  of  errors,  said  that  the  ante-nuptial  agreement  qual- 
ifies the  marriage  contract,  so  that  the  wife  retains  all  the  rights  which 
she  should  have  exercised  over  the  property  as  a  feme  sole ;  except  so 
far  as  she  has  in  express  terms  incapacitated  herself  by  that  instrument. 

As  a  necessary  consequence,  it  was  also  said  by  the  learned  judge, 
that  if  a  married  woman  be  permitted  under  a  settlement  to  act  as  a 
feme  sole,  in  regard  to  her  property,  it  is  perfectly  reasonable  that  her 
acts,  declarations  and  confessions  freely  made  should  be  allowed  to  have 
the  same  effect  in  regard  to  the  rights  and  interests  of  others,  as  if  she 
were  in  reality  afe?ne  sole.* 

At  law  the  wife  cannot  contract  a  liability  to  her  husband,  or  any  body 
else,  for  borrowed  money.     The  rule  at  law  is  universal  and  it  is  followed 

1  The  Methodist  Episcopal  Church  v.  Gardner,  22  Wend.  526.     Strcng  v.  Skin- 

Juqnos,  3  J.  Ch.  R.  77.     S.  C.  on  appeal,  ner,  4  Barb.  546. 

17  J.  R.  548.     Udall  v.  Kenney,  3  Cower,,  ■  Id.  592.     Strong  v.  Skinner,  4  Barb 

590.     5  J.  Ch.  R.  4(54,     Vanderheyden  55f.. 
v.  Mallory,  1    Comst.  4G2.     Gardner  v 


646  Of  Persojvs  under  Disability.  [C1t.  8 

also  in  equity,  except  in  cases  where  the  court  treats  the  wife,  with  re- 
spect to  her  separate  property,  as  a  feme  sole.1  In  that  class  of  casea 
it  is  a  legitimate  deduction  from  the  well  established  principles  of  the 
court,  that  separate  debts  contracted  by  the  wife,  expressly  on  her  own 
account,  shall,  in  all  cases,  be  considered  an  appointment  or  appropriation 
fir  the  benefit  of  the  creditor,  as  to  so  much  of  her  separate  estate  as  is 
sufficient  to  pay  the  debt,  if  she  be  not  disabled  to  charge  it,  by  the  terms 
of  the  deed  of  settlement.2  In  Gardner  v.  Gardner,  already  cited,  the 
wife  contracted  a  debt  with  her  husband  for  borrowed  money,  to  improve 
her  separate  estate ;  and  it  was  held  that  payment  of  such  a  debt  would 
be  enforced  in  equity  as  a  lien  upon  the  estate,  unless,  by  the  terms  of  the 
title  under  which  she  held  it,  she  was  prohibited  from  charging  the 
estate.3 

The  same  doctrine  was  held  by  Chancellor  Walworth.4  A  feme  co 
vert,  it  was  said,  is  as  to  her  separate  estate  considered  as  a  feme  sole , 
and  she  may,  either  in  person  or  by  her  legally  authorized  agent,  bind  such 
separate  estate  with  the  payment  of  debts  contracted  for  the  benefit  of 
the  estate,  or  contracted  for  her  own  benefit  upon  the  credit  of  the  sepa- 
rate estate.  And  the  assent  and  concurrence  of  her  trustee  is  not  neces- 
sary for  that  purpose,  when  no  restriction  upon  her  power  over  the  trust 
fund  is  contained  in  the  deed,  or  instrument,  under  which  such  separate 
estate  is  held.  As  a  deduction  from  these  principles,  it  was  held  that  the 
separate  estate  of  a  feme  covert  is  in  equity  chargeable  with  her  debts, 
contracted  upon  the  credit  of  that  estate,  to  the  same  extent  that  the 
estate  of  a  feme  sole  is  chargeable  with  the  debts  of  such  feme  sole  by 
the  common  law. 

In  Gardner  v.  Gardner,  (supra,)  the  debt  was  contracted  by  the  feme 
covert  to  improve  her  estate.  But  that  is  not  a  controlling  circumstance 
with  respect  to  the  validity  of  the  debt.  A  feme  covert  may  render  her 
separate  estate  liable  for  debts  contracted  by  her  on  the  credit  of  such 
estate,  but  which  were  not  for  the  benefit  thereof  There  is  some  con- 
flict in  the  English  decisions  on  this  subject,  arising,  it  is  said,  from  con- 
founding the  rights  and  privileges  of  the  wife,  at  common  law,  with  her 
equitable  rights  and  liabilities,  in  regard  to  her  separate  estate,  secured 
t-o  her  by  a  court  of  equity,  upon  principles  derived  from  the  civil  law. 
But  the  spirit  of  the  earliest  as  well  as  of  one  of  the  more  recent  decisions 
in  England  on  this  subject,  and  of  the  court  of  errors  and  supreme  court 

1  Gardner  v.  Gardner,  S22  Wend.  528.  *  The  North   American   Coal   Co.   v 

■  Id.     Strong  v.  Skinner,  4  Barb.  554.      Dyett,  7  Paige,  9. 
*  Heatly  v.  Thomas,  15  Ves.  596. 


Oh.  8.J  Married  Women.     Separate  Property.  647 

of  this  state,  is,  that  the  equitable  estate  of  a  feme  covert  is  liable  for 
the  payment  of  all  her  equitable  debts,  to  the  same  extent  as  though  such 
debts  were  contracted  by  a  feme  sole.1 

The  doctrine  we  are  considering  is  firmly  established,  and  has  been 
illustrated  by  numerous  well  considered  decisions.  A  brief  reference  to 
some  of  these  cases  will  show  the  nature  and  extent  of  the  power  of  the 
wife  over  her  separate  estate,  and  the  manner  in  which  courts  of  equity 
uphold  contracts  and  agreements  made  by  her,  which  would  not  be 
enforced  by  the  ordinary  rules  of  the  common  law. 

Thus,  it  has  been  held  that  husband  and  wife  may  contract,  for  a  bona 
fide  and  valuable  consideration,  for  a  transfer  of  property  from  him  to  her 
and  the  agreement  on  her  part  may  be  enforced  in  equity.  As  where  hus- 
band and  wife  agreed  by  parol  that  he  should  purchase  a  lot  in  her  name, 
and  build  a  house  thereon,  and  that  he  should  be  reimbursed  the  cost 
thereof  out  of  the  proceeds  of  another  house  and  lot  of  which  she  was 
seised,  which  should  be  sold  for  that  purpose ;  and  the  husband  having 
executed  the  agreement  on  his  part,  the  contract  failed  by  the  sudden 
death  of  the  wife,  who  left  infant  children,  to  whom  the  legal  estate  in 
both  lots  descended  ;  the  agreement  Avas  decreed  to  be  carried  into  effect, 
and  the  lot  was  ordered  to  be  sold,  and  a  conveyance  executed  by  the  in- 
fant trustees  by  their  guardian  ad  litem,  and  their  father  and  the  mas- 
ter were  directed  to  join  in  the  conveyance  ;  and  the  plaintiff  to  be  reim 
bursed  his  advances,  out  of  the  moneys  arising  from  the  sale.'- 

Though  such  conveyance  by  the  husband  to  the  wife  is  presumed,  in 
the  first  instance,  to  be  intended  as  an  advancement  and  provision  for 
her,  yet  that  presumption  may  be  rebutted  by  parol  proof.3 

While  a  deed  from  a  husband  directly  to  his  wife  is  void  in  law,  yet 
where  the  conveyance  of  the  husband  is  for  the  purpose  of  making  a  suit- 
able provision  for  the  wife,  as  giving  her  a  deed  of  certain  lands,  parcel 
of  his  estate,  during  her  widowhood,  equity  will  lend  its  aid  to  enforce 
the  provision ;  especially  where  the  rights  of  creditors  do  not  interfere, 
and  where  the  wife  had,  by  an  ante-nuptial  contract,  released  all  right  of 
dower  to  arise  under  the  marriage,  on  the  express  engagement  of  the 

1  North  American  Coal  Cc.  v.  Dyett,  a  Livingston  v.  Livingston,  2  J.  Ch.  R. 

7  Paige,  15.    Jaques  v.   The   Meth.  Ep.  537.    Lady  Arundell  v.  Pliipps,  10  Yes. 

Ch.  17  J.  R.  548.     Hulme  v.  Tenant,  1  146-149. 

Bro.  C.  C.  19.  Pyhers  v.  Smith,  3  id.  340.  3  Livingston     v.     Livingston,      supra. 

Murray  v.  Barlee,  4  Sim.  Rep.  82.  Strong  Finch  v.  Finch,  15  Ves.  43.     Kingdome 

r.  Skinner,  4  Bart   546.  v.  Bridges,  2  Vern.  67. 


648  Op  Persons  under  Disability.  [Ch.  8 

husband,  that  she  should  be  endowed  of  all  lands  acquired  by  them  during 
their  cohabitation.1 

So  where  a  husband  conveys  land  to  his  son,  for  a  nominal  sum,  on  his 
covenanting  to  pay  an  annuity  to  his  mother,  during  her  widowhood,  the 
wife  is  entitled  to  her  action  on  the  covenant  made  by  her  son  to  her 
husband  for  her  benefit ;  and  a  release  of  the  covenant  to  the  son  by  tho 
husband,  in  his  lifetime,  is  fraudulent  and  void  as  against  the  wife  ;  as  the 
sole  beneficial  interest  in  the  covenant  is  in  her,  and  she  alone  is  in  equity 
entitled  to  release  it.2 

A  court  of  law  would  uphold  an  action  in  favor  of  a  trustee  of  the  wife 
against  the  executors  of  the  husband,  to  enforce  an  agreement  made  by 
the  husband,  in  his  lifetime,  for  a  valuable  consideration,  in  favor  of  his 
wife.  Thus,  where  the  husband  executed  a  bond  to  a  third  person,  to 
secure  the  amount  of  a  legacy  left  to  the  obligor's  wife  by  her  father,  and 
received  by  the  obligor  after  marriage,  it  has  been  held  that  such  bond  is 
valid,  and  will  be  enforced,  even  at  law,  by  the  trustee  against  the  per- 
sonal representatives  of  the  obligor.3  Had  this  bond  been  given  directly 
to  the  wife  by  the  husband,  it  would  have  been  void  at  law,  though  good 
in  equity. 

A  married  woman  may  mortgage  her  separate  property  for  her  hus- 
band's debts,  by  uniting  with  him  in  the  mortgage,  and  she  may  also  ex- 
ecute a  valid  power  to  sell  the  property  in  case  of  default  of  payment ; 
and  the  wife  may  in  such  a  case,  if  she  chooses,  reserve  the  equity  of 
redemption  to  the  husband  alone,  who  may  sell  and  dispose  of  it.4 

So  a  ferae  covert  may  make  a  valid  indorsement  of  a  note  given  to  her 
before  marriage,  by  a  name  different  from  her  husband,  if  the  circum- 
stances of  the  case  be  such  as  to  warrant  the  presumption  that  the 
indorsement  was  made  with  the  assent  of  the  husband.5  In  this  case  the 
note  was  the  separate  property  of  the  wife  before  marriage,  subject  to 
her  exclusive  control  by  virtue  of  an  ante-nuptial  contract,  in  which  the 
husband  had  expressly  renounced  all  interest  in,  and  authority  over,  the 
property  of  his  wife,  and  had  united  in  an  instrument  which  transferred 
it  all  to  a  trustee  for  her  exclusive  benefit.  He  thus  had  no  beneficial 
interest  in  it,  and  no  right  in  any  manner  to  interfere  with  it.  And  he 
never  could  become  responsible  in  consequence  of  the  indorsement. 

The  principle  already  stated,  that  a  feme  covert,  with  respect  to  her 
separate  estate,  is  to  be  regarded  in  a  court  of  equity  as  a  feme  sole,  is 

1  Shepard  v.  Shepard,  7  J.  Ch.  E.  57.        4  Demarest  v.  Wynkoop,  8  J.  Cb.  R. 

2  Id.  129. 

*  Nortbup  v.  Barnurn's  Executors,  15  B  Miller  v.  Delamater,  12  Wend.  433. 
Wend.  167. 


Oli.  8  j  Married  Women.     Separate  Property.  610 

well  settlcl ;'  and  she  may,  unless  restrained  by  the  instrument  under 
which  she  acquires  it,  dispose  of  her  property,  without  the  consent  or 
concurrence  of  her  trustee.  If  she  enter  into  an  agreement  clearly  indi- 
cating her  intention  to  affect  by  it  her  separate  property,  and  there  be  no 
fraud  or  unfair  advantage  taken  of  her,  a  court  of  equity  will  apply  her 
estate  in  satisfaction  of  the  agreement.  And  she  may  give  her  property 
to  her  husband,  as  well  as  to  any  other  person,  if  her  gift  be  free,  and 
not  the  result  of  flattery  or  force,  or  improper  treatment.1 

"Where  a  legacy  due  to  a,  feme  covert,  as  her  separate  estate,  is  paid 
over  to  her  by  the  executor,  under  a  decree  of  the  surrogate,  obtained 
upon  the  application  of  her  husband,  and  is  accepted  by  her,  such  pay- 
ment will  protect  the  executor,  not  only  as  to  the  payment,  but  as 
to  future  accounting.  "With  respect  to  such  legacy  she  is  treated  as  a 
feme  sole,  and  her  receipt  is  a  good  discharge.2 

A  wife  may,  as  respects  her  estate,  become  surety  for  her  husband, 
and  in  such  case  as  against  him  and  his  creditors  she  is  entitled  to  all 
the  rights  of  a  surety.  If  she  mortgage  her  property  for  her  husband's 
debts,  she  is  entitled  in  equity  to  have  his  interest  in  the  land,  as  tenant 
by  the  curtesy  initiate,  first  sold  and  applied  in  its  extinguishment,3 

A  wife  having  separate  property  may  purchase  with  it,  from  her  hus- 
band, or  at  judicial  sales,  his  property,  real  or  personal,  and  have  it  lim- 
ited to  her  separate  use.  She  may  purchase  a  judgment  against  him, 
soil  his  real  estate  under  an  execution  issued  thereon,  and  become  the 
purchaser.4  Equity  will  sustain  such  purchase,  and  will  protect  the  real 
estate  purchased,  from  both  her  husband  and  his  creditors.5 

Previous  to  the  Revised  Statutes  a  trustee  might  hold  the  mere  naked 
legal  estate  in  real  property,  for  a  feme  covert,  while  the  whole  equita- 
ble interest  and  estate  therein  was  in  her,  and  subject  to  her  control.  In 
relation  to  such  an  estate,  therefore,  she  was  considered  as  a,  feme  sole, 
and  could  charge  her  equitable  interest  in  the  property  with  any  debt  she 
might  think  proper  to  contract  on  the  credit  thereof,  which  is  not  incon- 
sistent with  the  trustor  with  the  nature  of  her  interest  in  the  premises; 
\nd  which  Avas  authorized  by  the  instrument  or  conveyance  creating  the 
trust.  All  such  mere  formal  trusts,  even  in  favor  of  femes  covert,  are 
now  abolished.  And  in  the  few  trusts  which  are  authorized  by  the  Re- 
vised Statutes,  the  whole  estate,  both  legal  and  equitable,  is  vested  in  the 

1  Jfeth.  Ep.  Cli.  v.  Jaqnes,  17. T.  R.  548.  Wend.     312.    Hawley    v.    Bradford,    9 

8J.  Cb.R.  77.     Bradisb  v.  Gibbs,  3  id.  Paige,  200. 

623.    Cruger  v.  Cruccr,  6  Barb.  225.  *  Strong  v.  Skinner,  4  Barb.  54G. 

3  Guild  v.  Peck,  11  Paige.  VT5.  »  Id. 

■  Neimcewicz  v.  Gabn,  8  id.  014.     11 

Eq.  Jub.  82 


850  Of  Persons  under  Disability.  [Ch.  8 

trustee.  The  statute  also  declares,  in  terms,  that  the  person  for  whose  ben 
efit  the  trust  is  created,  shall  have  no  estate  or  in;erest  in  the  land ;  but 
may  enforce  the  performance  of  the  trust  in  equity."  A  trust  to  receive 
the  rents  and  profits  of  real  estate,  or  the  interest  or  income  of  the  pro- 
ceeds of  such  estate,  comes  within  the  63d  section  of  the  article  of  the 
Revised  Statutes  relative  to  uses  and  trusts.  (1  R.  S.  730.)  And  the 
cestui  que  trust  cannot  assign,  dispose  of,  or  in  any  manner  mortgage  oi 
pledge  his  interest  in  the  trust  property,  or  in  the  future  income  thereof ; 
nor  can  he  contract  any  debt  which  will  create  a  lien  upon  such  future  in 
come,  as  to  authorize  a  creditor  to  reach  it  by  any  proceeding,  eithe**  at  law 
or  in  equity.  As  a  feme  covert  cannot  pledge  or  create  a  charge  upon 
her  interest  in  such  a  trust,  in  anticipation  of  the  income  which  may 
thereafter  accrue,  or  become  payable  to  her  ;  and  as  she  cannot  contract 
a  personal  liability  upon  which  a  judgment  can  be  recovered,  her  interest, 
even  in  the  surplus  income  which  is  not  necessary  for  her  support,  cannot 
be  reached,  except  for  a  debt  contracted  before  marriage.2 

The  foregoing  case  arose  under  a  trust  deed,  made  under  the  Revised 
Statutes,  and  was  governed  by  the  rules  which  have  been  elsewhere  con- 
sidered. The  property  of  the  wife  could  not  be  reached  in  this  case,  be- 
cause the  instrument  creating  the  trust,  in  connection  with  the  Revised 
Statutes,  prevented  the  wife  from  anticipating  or  disposing  of  her  income 
or  estate  in  the  hands  of  her  trustee. 

But  the  question  has  sometimes  arisen  before  the  statutes  of  1848  and 
1849,  where  no  trust  deed  or  marriage  articles  had  been  executed  ;  and  at- 
tempts have  been  made  to  reach  the  separate  property  of  the  wife,  in  sat- 
isfaction of  her  debts  created  before  marriage,  and  while  her  coverture 
continued.  This  could  not  be  done.  Thus,  a  feme  sole  having  con- 
tracted a  debt,  and  owning  some  shares  of  bank  stock,  married.  After 
marriage,  the  stock,  with  the  consent  of  the  husband,  was  transferred  to 
a  third  person,  for  the  purpose  of  having  it  transferred  back  to  her  for 
her  sole  and  separate  use,  which  was  accerdingly  done.  She  also 
held  other  shares  of  bank  stock,  which  had  been  transferred  to  her 
separate  use,  by  the  executors  of  her  husband's  estate.  The  cred- 
itor sued  the  husband  and  wife  at  law,  and  being  met  by  a  plea  of  the 
husband's  bankruptcy,  discontinued.  He  then  filed  a  bill  in  equity  for 
the  purpose  of  reaching  the  bank  stock.  No  fraud  in  the  transfer  to  the 
wife's  separate  use  being  alleged,  nor  any  act  of  the  wife  after  marriage 
indicating  an  intention  to  charge  this  fund,  it  was  held  by  the  court  of 

1  L'Amoureux  v.  Van  Rensselaer,  1  a  L'Amoureux  v.  Van  Rensselaer,  1 
Barb.  Ch.  R.  37.    1  R.  S.  729,  §  60.  Barb.  Ch.  R.  34. 


Oh.  8.J  Married  "Women.     Separate  Property.  651 

appeals,  against  the  opinion  of  the  chancellor,  that  the  bill  could  not  be 
sustained.1 

As  the  law  stood  at  that  time,  it  cast  upon  the  husband  a  temporary 
liability  for  the  debts  of  the  wife  contracted  before  marriage.  That  lia- 
bility ceased  with  the  coverture,  unless  judgment  had  been  recovered 
against  both.  If  the  wife  survived  her  husband  and  judgment  had  not 
been  recovered,  her  liability  would  have  revived.2 

Where  there  is  no  positive  expression  of  an  intention  to  charge  the 
separate  estate  of  the  wife,  the  great  difficulty  is  to  ascertain  what  cir- 
cumstances shall  be  deemed  sufficient  to  create  such  a  charge,  and  what 
sufficient  to  create  only  a  general  debt.  It  is  agreed  that  there  must  be 
an  intention  that  the  debt  shall  affect  her  separate  estate,  otherwise  it 
will  not  do  so.3 

The  doctrine  of  appointment  or  appropriation,  in  equity,  relates  wholly 
to  engagements  made  or  debts  contracted  by  a  married  woman,  as  such, 
having  a  separate  estate,  and  in  reference  to  it.4  The  fact  that  the  debt 
has  been  contracted  by  a  woman  during  coverture,  either  as  a  principal 
or  as  a  surety,  for  herself  or  for  her  husband,  or  jointly  with  him,  seems 
ordinarily  to  be  held  prima  facie  evidence  to  charge  her  separate  estate, 
without  any  proof  of  a  positive  agreement  or  intention  so  to  do.5  This 
appointment  or  appropriation  is  not  enforced  by  an  action  at  law,  but  by 
a  suit  in  equity  ;  it  operates  not  against  the  person,  but  the  separate 
estate  of  the  wife,  in  the  hands  of  her  trustee.0  Lord  Mansfield  and  his 
associates,  towards  the  close  of  his  illustrious  career,  imported  the  same 
doctrine  into  the  courts  of  law,  and  held  that  a,  feme  covert,  living  apart 
from  her  husband,  and  having  a  separate  maintenance,  might  contract 
and  be  sued  in  a  court  of  law  as  a,  feme  sole,  and  that  her  second  husband 
was  liable  for  such  debt.7  The  same  rule  was  followed  in  a  few  subse- 
quent cases,  but  it  never  met  the  acquiescence  of  Westminster  Hall,  and 
was  finally  directly  overruled  by  the  concurrence  of  all  the  judges,  after 
solemn  argument.8  The  jurisdiction  in  this  class  of  cases  is  unquestion- 
ably in  equity  alone  ;  and  with  us,  where  law  and  equity  are  united  in  the 

1  Vanderheyden  v.  Mallory,  1  Comst.  &  Id.    Murray  v.   Barlee,  4  Sim.  82: 

452.    Reversing  S.  C,  3  Barb.  Ch.  R.  9.  S.  C.  3  Myl.  &  K.  209. 

4  Id.  8  Id. 

•  Vanderheyden  v.  Mallory,  1  Comst.  T  Corbett  v.  Poelnitz,  1  D.  &  E.  4. 
462.     Fettiplace  v.  Gorges,  1  Yes.  jr.  46.  8  Marshall  v.  Rutton,  8  id.  546;  and 
Jaques  v.   The  Meth.   Ep.  Ch.  17  J.  R.  see  remarks  of  Lord  Brougham  on  these 
546.  Gardner  v.  Gardner,  22  Wend.  526.  cases  in  Murray  v.  Barlee,  3  Myl.  &  K. 

*  Vanderheyden  v.  Mallory,  1  Comst. 
463. 


652  Of  Persons  under  Disability.  [Ch.  8. 

same  court,  and  prosecuted  by  the  same  forms,  the  remedy  is  in  equity, 
and  not  by  an  ordinary  common  law  action. 

It  remains  to  consider,  in  this  connection,  what  is  meant  by  the  sepa- 
rate estate  of  the  wife,  with  reference  to  the  doctrine  we  are  considering. 
The  definition,  as  sanctioned  by  the  court  of  appeals  in  one  case,  was  thus 
expressed  by  the  learned  judge  who  delivered  the  prevailing  opinion : 
"  A  separate  estate  in  &feme  covert  only  exists  in  such  property,  whether 
it  be  real  or  personal,  as  is  settled  upon  her  for  her  separate  use,  without 
any  control  over  it  on  the  part  of  her  husband.  It  is  not  all  the  estate, 
either  in  lands  or  chattels  belonging  to  a  feme  covert,  nor  is  it  her  right 
of  dower  in  the  real  estate  of  her  husband.  As  to  that  kind  of  estate, 
the  court  of  chancery,  for  certain  purposes,  considers  her  as  a  feme  sole; 
and  her  contracts  relative  to  it,  if  made  in  a  particular  manner,  as 
binding."1 

Under  the  act  for  the  more  effectual  protection  of  the  property  of  mar 
ried  women,  (L.  of  1848,  p.  307 ;  L.  of  1849,  p.  528,)  both  the  real  and 
personal  property  of  any  female  who  thereafter  marries,  and  which  she 
should  own  at  the  time  of  her  marriage,  and  the  rents,  issues  and  profits 
thereof,  are  not  subject  to  the  disposal  of  her  husband,  nor  liable  for  his 
debts,  and  continue  her  sole  and  separate  property,  as  if  she  were  a 
single  woman.  And  by  the  third  section,  as  amended  in  1849,  a  married 
female  is  empowered  to  take  by  inheritance,  or  by  gift,  grant,  devise  or 
bequest,  from  any  person  other  than  her  husband,  and  hold  to  her  sole 
and  separate  use,  and  convey  and  devise  real  and  personal  estate,  and  any 
interest  or  estate  therein,  and  the  rents,  issues  and  profits  thereof,  in  the 
same  manner  and  with  the  like  effect,  as  if  she  were  unmarried  ;  and  the 
same  are  not  subject  to  the  disposal  of  her  husband  nor  liable  for  his 
debts.  Her  property  thus  continues  her  separate  estate,  by  force  of  the 
statute,  notwithstanding  the  coverture,  and  without  the  intervention  of 
marriage  articles  or  trustees.  It  would  seem  that  it  can  be  liable  to  her 
contracts  and  charges,  during  the  coverture,  in  the  same  way  only  that 
before  the  statutes  in  question  her  separate  estate  was  affected  by  her 
engagements  through  the  medium  of  a  court  of  equity,  and  not  by  an 
action  at  law. 

1  Albany  Fire  Ins.  Co.  v.  Bay,  4  Comst.  13.     Murray  v.  Bailee,  4  Sim.  82;  S.  Q. 

11 ;  S.  0.  4  Barb.  407.     Meth.  Ep.  Ch.  on  appeal,  3  Myl.  &  K.  209.     Clancy  on 

v.  Jaques,  3  J.  Ch.  R.  77;  S.  C.  in  error,  Rights  of  Women,  251. 
17  J.  R.  548.    Martin  v.  DweVv  6  Wend 


Ch.  8.]  Married  Women.     Maintenance.  653 

In  concluding  this  branch  of  the  subject,  it  remains  that  something 
should  be  said  with  respect  to  the  jurisdiction  of  courts  of  equity  in 
decreeing  maintenance  of  the  wife. 

By  the  rules  of  the  common  law  the  husband  is  bound  to  maintain  his 
wife,  and  may  be  compelled  to  find  her  necessaries,  as  meat,  drink,  clothes, 
physic,  &c.  suitable  to  the  husband's  degree,  estate  or  circumstances. 
f  he  turns  her  away,  he  gives  her  a  credit  wherever  she  goes,  and  must 
t>ay  for  necessaries  furnished  her.1  If  she  elope  from  her  husband,  though 
not  in  an  adulterous  manner,  the  husband  is  not  liable  for  any  of  her 
contracts,  though  the  person  who  gives  credit  to  her  for  necessaries  had 
no  notice  of  the  elopement.  But  if  she  offers  to  return,  and  her  husband 
refuses  to  receive  her,  his  liability  upon  her  contracts  for  necessaries  is 
revived  from  that  time,  notwithstanding  a  general  notice  not  to  trust 
her.2  If  she  elopes  with  an  adulterer,  and  offers  to  return,  he  is  not 
bound  to  receive  her,  and  is  not  liable  for  necessaries  furnished  to  her , 
but  if  he  voluntarily  pardon  her  and  take  her  back,  he  becomes  again 
liable.3  And  if  the  husband  commits  adultery,  it  justifies  the  wife  in 
leaving  him  ;  and  if  she  does  leave  his  house,  he  is  liable  for  necessaries, 
though  he  forbids  all  persons  from  trusting  her ;  nor  can  he  shield  him- 
self by  offering  to  provide  for  her  in  a  separate  apartment  of  his  residence.'1 

But  this  common  law  liability  of  the  husband  cannot  be  directly 
enforced  in  equity  ;  and  the  remedy  is  usually  obtained  by  an  action  at 
law  against  the  husband,  at  the  suit  of  the  person  who  has  furnished 
the  discarded  wife  with  necessaries  suitable  to  the  rank  and  condition  of 
the  husband.  In  one  case  the  chancellor  intimated,  that  though  the 
husband  be  a  gambler,  and  there  be  every  probability  that  he  will  sacri- 
fice his  estate  as  tenant  by  the  curtesy  initiate,  and  reduce  his  family  to 
poverty,  a  court  of  equity  cannot  divest  him  of  the  estate  or  control  him 
in  the  exercise  of  it,  unless  indeed  there  be  a  suit  pending  with  reference 
to  their  separation.5 

The  maintenance  which  courts  of  equity  enable  the  wife  to  obtain,  is 
such  as  depends  on  the  agreement  of  the  husband  for  a  separate  main- 
tenance, or  as  is  secured  by  marriage  articles,  or  can  be  obtained  from 
her  separate  property,  or  other  property  of  the  wife  not  reduced  to  pos- 
session by  the  husband,  and  forfeited  by  him  by  his  misconduct ;  or  it  is 
such  as  the  court  is  authorized  by  statute  to  decree  in  the  shape  of  ali- 

1  Per  Piatt,  J.  in  McGahay  v.  Williams,  *  Sykes  v.  Ilalstead,  1  Sand.  S.  C.  R 

12  J.  R.  293.     Lockvvood  v.  Thomas,  12  483. 

id.  243.  6  Van  Duzer  v.  Van  Duzer,  6  Paige, 

'  Id.  3G6.     Ball  v.  Montgor  ery,  2  Ves.  jr.  195, 

*  Bac.  Abr.  Baron  and  Feme  (EI.) 


654  Of  Persons  under  Disability.  [Ch.  b 

mony  to  the  ■wife,  on  pronouncing  a  divorce,  or  separation  from  bed  and 
board.  In  the  first  case,  it  is  raised  out  of  the  wife's  property,  and  in 
the  second,  out  of  the  property  of  the  husband. 

Where,  by  the  marriage  settlement,  the  whole  real  and  personal  estate 
of  the  wife  is  secured  to  her  separate  use,  the  husband  is,  notwithstanding, 
bound  to  maintain  his  wife  and  family  during  the  coverture,  and  cannot 
make  the  expense  a  charge  on  her  separate  estate ;  and  the  consent  or 
agreement  of  the  wife,  during  coverture,  that  the  expenses  should  be 
borne  by  her  separate  estate,  is  null  and  void.1  Where  the  wife  is 
abandoned  by  her  husband,  or  prevented  from  cohabiting  with  him  by 
his  ill  treatment,  a  court  of  equity  will  lay  hold  of  the  property  or  money 
of  the  wife,  which  may  be  within  its  power,  for  the  purpose  of  providing 
a  maintenance  for  her.2 

The  cases  which  have  already  been  considered  with  respect  to  the 
wife's  equity  to  a  provision  out  of  her  own  estate,  whether  they  rest  upon 
that  doctrine  alone,  or  upon  the  contract  between  the  husband  and  wife, 
afford  sufficient  illustrations  on  this  subject,  -without  their  being  again 
repeated.  Equity  does  not  in  general  ever  decree  maintenance  to  the 
wife  out  of  the  husband's  estate,  except  as  incident  to  some  other  relief, 
or  the  court  is  expressly  authorized  by  statute  to  grant  it. 

In  this  state  the  jurisdiction  over  divorces  was  formerly  entertained 
by  the  legislature,  on  special  application  of  the  party  aggrieved,  and  by 
a  special  act  of  legislation.  This  practice  was  superseded  in  1787,  by 
the  act  of  that  year,  directing  a  mode  of  trial  and  allowing  of  divorces  in 
cases  of  adultery.3  Since  then  the  legislature  has  not,  but  in  a  single 
instance,  granted  a  divorce,  and  that  was  in  favor  of  the  wife,  in  conse- 
quence of  her  husband  having  abandoned  her  and  joined  the  society  of 
Shakers.4  The  act  of  1787  gave  the  jurisdiction  to  the  court  of  chancery 
over  divorces  for  adultery  ;  and,  as  incidental  to  that  relief,  conferred  upon 
the  court,  jurisdiction  over  the  subject  of  maintenance  for  the  wife  and 
children  of  the  marriage.  This  jurisdiction  was  enlarged  in  1813,  and 
authorized  the  court,  on  the  application  of  the  wife,  to  grant  limited 
divorces  to  her  for  the  cruel  and  inhuman  treatment  of  the  husband,  and 
;he  like  jurisdiction  was,  in  1824,  given  to  the  court  on  the  application 
of  the  husband.5     The  whole  underwent  a  revision  in  1830  ;6  and  by  the 

1  Meth.  Ep.  Ch.  v.  Jaques,  1  J.  Ch.  R.        3  1  Greenl.  428,  ch.  69. 
150.  4  Laws  of  1818,  p.  38,  ch.  47. 

8  Drummond  v.  Magee,  4  id.  318.    Fry        6  2  R.  L.  of  1813,  pp.  197-200.    Laws 

/.  Fry,  7  Paige,  461.    Martin  v.  Martin,  1824,  p.  2-49,  §  12. 
1  Comst.  473.  6  2  K.  S.  142  et  seq. 


Oh.  8.]  Marrikd  Women.     Divorce.  655 

constitution  of  1846  the  jurisdiction,  formerly  vested  in  the  court  of 
chancery,  became  vested  in  the  supreme  court,  created  by  that  instru- 
ment. 

At  common  law  the  court  of  chancery  had  no  jurisdiction  in  matters 
of  divorce.  That  jurisdiction  belonged  to  the  ecclesiastical  courts,  and  to 
parliament. 

In  this  state  the  supreme  court  has  jurisdiction,1  to  declare  the  mar- 
riage contract  void  by  a  sentence  of  nullity,  for  either  of  the  following 
causes  :  1.  That  the  parties,  or  one  of  them,  had  not  attained  the  age  of 
legal  consent,  which  is  fourteen  years  in  males,  and  twelve  in  females.2 

2.  That  the  former  husband  or  wife  of  one  of  the  parties  was  living;  and 
that  the  marriage  with  the  former  husband  or  wife  was   then  in  force. 

3.  That  one  of  the  parties  was  an  idiot  or  lunatic.  4.  That  the  consent 
of  one  of  the  parties  was  obtained  by  force  or  fraud.  5.  That  one  of  the 
parties  was  physically  incapable  of  entering  into  the  marriage  state. 
Suits  to  annul  a  marriage  are  conducted  in  the  same  manner  as  other 
suits  prosecuted  in  courts  of  equity,  and  the  court  has  the  same  power 
to  award  issues,  to  decree  costs,  and  to  enforce  its  decrees,  as  in  other 
cases.3  The  mode  of  proceding  in  these  respects  belongs  to  treatises  on 
the  practice  of  the  court,  rather  than  to  the  subject  we  are  considering. 

Before  the  Revised  Statutes,  it  was  decided  by  the  chancellor,  that 
the  court  of  chancery  had  not  jurisdiction  to  dissolve  the  marriage,  or 
dncree  a  divorce  for  corporeal  impotence.4  This  decision  called  the  atten- 
tion of  the  legislature  to  the  subject  and  led  to  the  existing  law.  But 
tli e  court  cannot  now  declare  a  marriage  null  for  the  physical  impotence 
oi  the  defendant,  solely  upon  the  confession  or  declarations  of  the  parties.5 
^nd,  to  authorize  such  sentence,  the  incapacity  must  have  existed  at  the 
time  of  the  marriage,  and  be  incurable.6 

Mere  sterility  of  the  wife  can  in  no  case  be  ground  for  such  sentence 
of  nullity.7 

Where  there  is  reason  to  believe  that  the  incapacity  can  be  removed 
by  a  slight  surgical  operation,  there  is  a  probability  of  capacity,  and  the 
court  cannot  annul  the  marriage.  And  the  fact  that  the  defendant  is  un- 
willing to  cohabit  with  the  complainant,  and  therefore  declines  to  submit 

1  2  II.  S.  142.  *  Burtis  v.  Burtis,  Hopk.  557, 

2  Lawe  of  1830,  p.  301,  §  24,  repealing        s  2  R.  S.  144,  §  36. 

2  II.  B.  138,  §  2,  and  restoring  the  com-  6  Devanbagh  v.  Devanbagb,  5  Paige, 
mon  law.     1  111.  Coin,  490.  554;  S.  0.  6  id.  175. 

'  211.  S.  141,  §35.  'Id. 


GoG  Of  Persons  under  Disability.  [Ch.  8. 

to  the  operation,  is  no  ground  for  a  sentence  of  divorce ;  as  the  court  has 
no  power  to  compel  the  performance  of  the  marriage  vows.1 

But  the  court  has  power  to  compel  the  party  to  submit  to  a  surgical 
operation,  when  necessary  to  ascertain  the  facts ;  but  in  a  suit  against  a 
female,  the  court  will  be  content  with  the  testimony  of  competent  sur- 
geons, as  to  a  former  examination  by  them,  and  that  the  incapacity  is  in- 
curable,2 

In  one  case,  where  the  wife  in  her  answer  admitted  present  incapacity, 
but  attributed  it  to  disease,  subsequent  to  the  marriage,  the  court  ordered 
her  to  submit  to  an  examination  by  physicians  to  be  named  by  the  hus- 
band and  sanctioned  by  the  court,  and  also  to  answer  upon  oath  interrog 
atories  as  to  the  commencement  and  progress  of  the  disease.3 

Prior  to  the  Revised  Statutes,  the  court  of  chancery  entertained  juris- 
diction to  declare  the  nullity  of  a  marriage  where  one  of  the  parties 
was  a  lunatic.4  The  chancellor  said  it  was  too  plain  a  proposition  to  be 
questioned,  that  idiots  and  lunatics  are  incapable  of  entering  into  the  mat- 
rimonial contract.  Such  marriage  is  absolutely  void.  And  as  the  court 
of  chancery  had  jurisdiction  in  matrimonial  causes,  it  was  the  proper  tri- 
bunal to  pronounce  by  its  decree  that  the  marriage  was  void  ab  initio. 
Some  of  the  suggestions  of  the  chancellor  had  their  influence  in  framing 
the  existing  statute. 

The  court  has  also  jurisdiction  to  grant  divorces  dissolving  the  mar- 
riage, whenever  adultery  has  been  committed  by  any  husband  or  wife,  in 
either  of  the  following  cases  :  1.  Where  both  husband  and  wife  were  in- 
habitants of  this  state,  at  the  time  of  the  commission  of  the  offense. 
2.  Where  the  marriage  has  been  solemnized  or  has  taken  place  within  this 
state,  and  the  injured  party,  at  the  time  of  the  commission  of  the  offense, 
and  at  the  time  of  exhibiting  the  bill  of  complaint,  is  an  actual  inhabit- 
ant of  this  state.  3.  Where  the  offense  has  been  committed  in  this 
state,  and  the  injured  party,  at  the  time  of  exhibiting  the  bill  of  complaint, 
is  an  actual  inhabitant  of  this  state.5  The  action  for  a  divorce,  when 
brought  by  the  wife,  is  brought  in  her  own  name,  and  the  answer  of  the 
opposite  party  is  put  in  without  oath  or  affirmation.  If  the  adultery  be 
denied,  the  court  may  direct  the  issue  to  be  tried  by  a  jury.  If  the  adul- 
tery be  admitted  by  the  defendant,  the  court  refers  the  cause  to  a  referee 
with  directions  to  take  proof  of  the  facts  charged,  and  to  report  the  same 

1  Devanbagh  v.  Devanbagh,  5  Paige,  4  "Wightman  v.  Wightman,  4  J.  Ch.  R. 
554;  S.  C.  6  id.  175.  343,  where  the  whole  subject  is  fully  dis« 

2  Id.  cussed. 

■  Newell  v.  Newell,  9  Paige,  25.  5  2  R.  S.  144. 


Ch   8.'|  Married  Womkn.     Divorce.  657 

to  the  court  -with  his  opinion  thereon.'  The  court  has  no  power,  even 
with  the  consent  of  the  parties,  to  decree  an  absolute  or  a  partial  divorce, 
except  in  the  special  cases  provided  for  by  statute.2 

Though  the  fact  of  adultery  be  established,  the  court  may  deny  a  di- 
vorce in  the  following  cases  :  1.  Where  the  offense  shall  appear  to  have 
been  committed  by  the  procurement,  or  with  the  connivance  of  the  com- 
plainant. 2.  Where  the  offenses  charged  shall  have  been  forgiven  by  the 
injured  party,  and  such  forgiveness  be  proved  by  express  proof,  or  by  the 
voluntary  cohabitation  of  the  parties,  with  the  knowledge  of  the  fact. 
3.  Where  there  shall  have  been  no  express  forgiveness,  and  no  volun- 
tary cohabitation  of  the  parties,  but  the  suit  shall  not  have  been  brought 
within  five  years  after  the  discovery  by  the  complainant  of  the  offense 
charged.  4.  Where  it  shall  be  proved  that  the  complainant  lias  also 
been  guilty  of  adultery,  under  such  circumstances  as  would  have  entitled 
the  defendant,  if  innocent,  to  a  divorce.3 

The  doctrine  with  respect  to  recrimination  and  condonation  was  bor- 
rowed from  the  English  ecclesiastical  law,  and  by  them  from  the  civil  law. 
The  first  is  founded  on  the  principle  that  a  party  cannot  be  permitted  to 
complain  of  the  breach  of  a  contract  which  he  has  first  violated,4  and  the 
second,  on  the  ground  that  he  shall  not  insist  on  the  violation  of  a  contract 
which  he  has  himself  waived,  or  call  for  puni.shment  of  an  act  which  he 
has  himself  forgiven 

The  recriminatory  charge  of  adultery  must  be  set  up  in  the  same  man- 
ner as  in  a  bill,  and  with  the  same  allegations,  that  it  was  committed 
without  the  defendant's  procurement,  connivance,  privity  or  consent,  and 
these  allegations  are  issuable.5 

Condonation  is  a  conditional  forgiveness  ;  and  a  repetition  of  the  injury 
revives  a  condoned  adultery.6  It  must  be  insisted  on  in  the  answer,  or 
urged  by  wa}7  of  special  plea. 

Voluntary  cohabitation  of  a  wife  with  her  husband,  with  full  knowledge 
of  an  act  of  adultery  committed  by  him,  or  vice  versa,  is  legal  evidence 
of  a  condonation  of  the  offense,  so  as  to  bar  a  suit  for  a  divorce.7  Condo- 
nation  may  be  inferred  from  cohabitation,  but  the  inference  may  be  re- 

-  2  R.  S.  145.     Code,  §  72.  144.     Astley  v.  Astley,  1  Ilagg.  Ecc.  R. 

a  rulmer   v.    Palmer,    1    Paige,    276.  714.     Wood  v.  Wood,  2  Paige,  108. 

Perry  v.  Perry,  2  id.  501.  6  Smith  v.  Smith,  4  Paige,  432.     Burr 

s  2  R.  S.  145,  §  42.  v.  Burr.  10  id.  24,  34. 

*  Beehe  v.  Beebe,  1  Ilagg.  780.  7  Williamson  v.  Williamson,   1  J.  Ch. 

*  Mprrell  v.  Morrell,  3  Barh.  S.  C.  R.  R.  488.  Johnson  v.  Johnson,  4  Paige, 
236.  Beebe  v.  Beebe,  1  Ilagg.  789.  460.  14  Wend.  637.  Wood  v.  Wood.  2 
Foster    v.  Foster,  1  Ilagg.  Const.  Rep.  Taige.  108. 

Eq.  Jitr.  83 


658  Of  Persons  under  Disability.  [Ch.  8 

pelled  by  accompanying  circumstances.'  And  it  ought  not  to  be  held  in 
all  cases  a  strict  bar  against  the  wife,  as  she  is,  to  a  certain  extent,  under 
the  control  of  her  husband.2 

Whether  condoned  adultery  will  be  revived  by  subsequent  cruel  treat- 
ment of  the  wife  by  the  husband,  or  whether  it  can  be  revived  only  by  an 
act  of  the  same  kind,  is  left  in  doubt  by  the  New-York  cases.  The  chan- 
cellor held  to  the  latter,  and  the  judges  of  the  supreme  court  the  former 
opinion,  and  their  opinion  seems-  to  be  in  conformity  to  the  course  of  the 
English  decisions.3 

If  the  wife  be  the  complainant,  and  a  decree  dissolving  the  marriage 
be  pronounced,  the  court  is  authorized  to  make  a  further  decree  or  order 
against  the  defendant,  compelling  him  to  provide  for  the  maintenance  of 
the  children  of  the  marriage,  and  to  provide  such  suitable  allowance  to 
the  complainant,  for  her  support,  as  to  the  court  shall  seem  just,  having 
regard  to  the  circumstances  of  the  parties  respectively.4  In  such  a  case, 
too,  if  the  wife,  at  the  time  of  pronouncing  such  decree,  be  the  owner  of 
any  real  estate,  or  have  in  her  possession  any  goods  or  things  in  action, 
which  were  left  with  her  by  her  husband,  acquired  by  her  own  industry, 
given  to  her  by  devise  or  otherwise,  or  to  which  she  may  be  entitled  by 
the  decease  of  any  relative  intestate,  all  such  real  estate,  goods  or  thing? 
in  action,  the  statute  declares  shall  be  her  sole  and  absolute  property.5 

Where  the  husband  is  complainant,  and  a  decree  dissolving  the  mar- 
riage is  pronounced,  the  right  of  the  complainant  to  any  real  estate  owned 
by  the  defendant  at  the  time  of  pronouncing  the  decree,  in  her  own  right, 
and  to  the  rents  and  profits  thereof,  are  not  taken  away  or  impaired  by 
such  dissolution  of  the  marriage  ;  and  the  husband  is  also  entitled  to  such 
personal  estate  and  things  in  action,  as  may  belong  to  the  defendant,  or 
be  in  her  possession  at  the  time  such  decree  shall  be  pronounced,  in  like 
manner  as  though  the  marriage  had  continued.6  And  the  wife,  being  a 
defendant  in  a  suit  for  a  divorce  brought  by  her  husband,  and  convicted 
of  adultery,  is  not  entitled  to  dower  in  her  husband's  real  estate,  or  any 
part  thereof;  nor  is  she  entitled  to  any  distributive  share  in  his  personal 
estate.7 

Although  the  divorce  on  the  ground  of  adultery  is  often  spoken  of  as  a 
divorce  a  vinculo  matrimonii,  yet  it  is  not  so  described  in  the  statute, 

1  Whispel  v.  Whispel,  4  Barb.  217.  4  2  R.  S.  145,  §  45. 

5  Wood  v.  Wood,  supra.  6  Id.  146,  §  46. 

3  Johnson   v.    Johnson,  4  Paige,  460.  c  Id.  146. 

Reversed  by  court  of  errors,  14  Wend.  '  Id.  §  48. 
637;  and  see  the  English  Ecclesiastical 
cases  under  preceding  note 


Oh.  8.]  Married  Women.     Divorce.  659 

nor  does  it  go  to  that  extent.  The  complainant,  indeed,  may  marry  dur- 
ing the  lifetime  of  the  defendant,  but  the  defendant  convicted  of  adultery 
is  not  permitted  to  marry  again,  until  the  death  of  the  complainant.1 
And  the  wife  being  divorced  for  the  adultery  of  the  husband  is,  never- 
theless, entitled  to  dower  in  lands  whereof  the  husband  was  seised  during 
the  coverture,  prior  to  the  divorce  for  adultery  committed  by  him,  she 
being  the  innocent  and  he  the  guilty  party.2 

If  the  divorce  were  a  technical  divorce  a  vinculo  matrimonii,  it  would 
effectually  bastardize  the  issue  of  the  marriage.  But  the  divorce  granted 
in  this  case  has  no  such  effect.  If  the  wife  is  the  complainant,  the  legit- 
imacy of  the  children  of  the  marriage,  born  or  bogotten  of  her  before  the 
commencement  of  the  action,  is  not  affected  by  the  decree  of  dissolution.3 
And  where  the  husband  Is  complainant,  the  legitimacy  of  children,  born 
or  begotten  before  the  commission  of  the  offense  charged,  is  not  affected 
by  the  decree;  but  the  legitimacy  of  other  children  of  the  wife,  may  be 
determined  by  the  court  upon  the  proofs  in  the  cause.  In  every  such 
case,  the  legitimacy  of  all  children,  begotten  before  the  commencement 
of  the  suit,  is  presumed  until  the  contrary  is  shown.4 

The  court  is  also  empowered  to  grant  a  limited  divorce,  or  a  separation 
from  bed  and  board  forever,  or  for  a  limited  time,  on  the  complaint  of  a 
married  woman,  In  the  following  cases:  1.  Between  any  husband  and 
wife,  inhabitants  of  this  state.  2.  Where  the  marriage  shall  have  been 
solemnized,  or  shall  have  taken  place,  within  this  state,  and  the  wife  shall 
he  an  actual  resident  at  the  time  of  exhibiting  her  complaint.  3.  Where 
the  marriage  shall  have  taken  place  out  of  this  state,  and  the  parties 
have  become  and  remained  inhabitants  of  this  state,  at  least  one  year,  and 
the  wife  shall^  be  an  actual  resident  at  the  time  of  exhibiting  her  com- 
plaint.5 The  statute  enacts  that  such  separations  may  be  decreed  for 
the  following  causes:  I.  The  cruel  and  inhuman  treatment  by  the 
husband  of  his  wife.  2.  Such  conduct  on  the  part  of  the  husband  towards 
his  wife,  as  may  render  it  unsafe  and  improper  for  her  to  cohabit  with 
him.  3.  The  abandonment  of  the  wife  by  the  husband,  and  his  refusal 
or  neglect  to  provide  for  her.6     The  Revised  Statutes  contemplated  only 

1  2  R.  S.  146,  §  49.  139.  Van  Aernamv.  Van  Aernain,l  Barb. 

5  TTait  v.  "Wait,  4  Comst.  95.     4  Barb.  Ch.  R.  375.     Montgomery  v.  Montgom- 

210,  dissenting  opinion.     Burr  v.  Burr,  ery,  3  id.    132.     Clayton  v.  Wardell,   ~> 

10  Paige,  25.  Dictum  of  M'Coun,  V.  Ch.  Barb.  214. 

contra,  2  Edw.  Ch.  R.  596,  and  per  Hand  *  2  R.  S.  146,  §  50.     Id.  §  51. 

and  Cady,  justices,  4  Barb.  198  et  seq.  *  Perry  v.  Perry,  2  Paige,  501.     Perry 

3  2  R.  S.  lirK  §  -43.  v.  Perry  2  Barb.  Ch.  R.  311.     1   id  Blfi 
Id.  §  44.     Cross    v.    Crow,   3  Paige, 


660  Of  Persons  under  Disability.  [Ch.  8 

an  action  by  the  "wife  against  the  husband  for  his  cruelty  towards  her,  as 
a  ground  of  separation.  But  it  seems  the  act  of  1824,  (L.  p.  249,  §  1%) 
has  been  left  unrepealed,  thus  giving  to  the  husband  a  corresponding 
right  to  obtain  a  decree  of  separation  from  his  Avife,  for  similar  causes. 
And  such  separation  has,  on  several  occasions,  been  granted  in  actions 
brought  by  him.' 

The  bill  in  these  cases  is  required  to  state  particularly  the  nature  and 
circumstances  of  the  complaint  on  which  the  complaining  party  relies, 
setting  forth  times  and  places  with  reasonable  certainty ;  and  the  defend- 
ant is  permitted  to  prove,  in  his  justification,  the  ill  conduct  of  the  com- 
plainant, and  on  establishing  such  defense,  to  the  satisfaction  of  the  court, 
the  bill  will  be  dismissed.2  The  recriminatory  matter,  to  be  admissible 
in  evidence,  should,  it  is  presumed,  be  set  up  in  the  defendant's  answer.3 

Upon  decreeing  a  separation  in  any  suit,  the  court  may  make  such  fur- 
ther decree  as  the  nature  and  circumstances  of  the  case  may  require,  and 
may  make  such  order  and  decree  for  the  suitable  support  and  mainte- 
nance of  the  wife  and  her  children,  or  any  of  them,  by  the  husband,  or 
out  of  his  property,  as  may  appear  just  and  proper.  And  although  a  de- 
cree for  separation  from  bed  and  board  be  not  made,  the  court  may  make 
such  order  or  decree  for  the  support  und  maintenance  of  the  wife  and 
her  children,  or  any  of  them,  by  the  husband,  or  out  of  his  property,  as 
the  nature  of  the  case  renders  suitable  and  proper.4 

Though  a  decree  for  a  separation  forever,  or  for  a  limited  time,  be  pro- 
nounced, it  may  be  revoked  at  any  time  thereafter,  by  the  same  court  by 
which  it  was  pronounced,  under  such  regulations  and  restrictions  as  the 
court  may  impose  upon  the  joint  application  of  the  parties,  and  upon  their 
producing  satisfactory  evidence  of  their  reconciliation.5 

With  regard  to  what  shall  be  deemed  cruelty,  within  the  meaning  of 
the  law,  where  the  application  for  a  divorce  is  made  by  the  wife,  it  has 
been  held  that  the  cruelty,  which  entitles  her  to  a  separation,  is  that  kind 
of  conduct  which  endangers  the  life  or  health  of  the  complainant,  and 
renders  cohabitation  unsafe.6  The  refusal  of  the  husband  to  let  his  wife 
attend  a  particular  church  of  which  she  was  a  member,  though  unkind 

1  Independently  of  the  statute  the  hus-  3  Morrell  v.  Morrell,  3  Barb.  S.  C.  R. 

band  could  not  maintain  a  bill  for  separa-  236.    Hopper  v.  Hopper,  11  Pabe,  46 

tion  on  account  of  the  cruelty  of  his  wife.  Code,  §  149. 

as  the  common  law  was  supposed  to  give  4  2  R.  S.  147. 

him   power    to    protect    himself.    Van  6  Id.  §  56. 

Vf-liton  v.  Van  Veghten,  4  J.  Ch.  R.  501.  8  Perry  v.  Perry,  2  Paige,  501. 

5  B.  8.  147  §§  52,  53. 


Ch.  8.]  Married  Women.     Divorce.  661 

and  oppressive,  was  said,  in  one  case,  to  afford  no  ground  for  a  separa 
tion.1  On  another  occasion,  words  of  menace,  accompanied  by  a  proba- 
bility of  bodily  violence,  were  held  to  be  sufficient.  It  was  thought  that 
it  was  enough  if  they  inflict  indignity  and  threaten  pain.2 

The  statute  on  this  subject  seems  to  have  incorporated  the  general 
doctrines  of  the  ecclesiastical  law.  In  one  case,3  the  vice  chancellor,  in 
discussing  the  general  subject  of  cruelty,  with  reference  to  a  separation 
between  the  parties,  said  that  in  determining  what  is  cruelty,  or  the 
scevitia  of  the  ecclesiastical  law,  we  must  look  into  the  cases  decided  by 
the  courts  having  jurisdiction  in  matrimonial  cases.  It  is  difficult,  and 
perhaps  hardly  safe,  to  define  in  terms  sufficiently  clear  and  comprehen- 
sive, what  constitutes  cruelty  in  a  legal  sense.  Lord  Stowell  has  laid 
down  the  rule  in  several  cases.  In  Evans  v.  Evans,  (1  Hagg.  Eccl.  Rep. 
85,)  he  observes,  that  the  causes  must  be  great  and  weighty,  and  such  as 
show  an  absolute  impossibility  that  the  duties  of  the  married  life  can  be 
discharged.  What  falls  short  of  this  is  with  great  caution  to  be  admit- 
ted.  What  merely  wounds  the  mental  feelings  is  in  few  cases  to  be 
admitted,  when  they  are  not  accompanied  with  bodily  injuries,  either 
actual  or  menaced.  Mere  austerity  of  temper,  petulance  of  manners, 
rudeness  of  language,  a  want  of  civil  attention  and  accommodation,  even 
occasional  sallies  of  passion,  if  they  do  not  threaten  bodily  harm,  do  not 
amount  to  legal  cruelty.  They  are  high  moral  offenses  in  the  marriage 
state  undoubtedly,  not  innocent  surely  in  any  state  of  life,  but  still  they 
are  not  that  cruelty  against  which  the  law  can  relieve.  Under  such  mis- 
conduct, the  suffering  party  must  bear  in  some  degree  the  consequences 
of  an  injudicious  connection  ;  must  subdue  by  decent  resistance  or  by 
prudent  conciliation  ;  and  if  this  cannot  be  done,  both  must  suffer  in 
silence.     Similar  principles  were  advanced  in  other  cases.4 

But  while  the  general  ground  on  which  the  court  proceeds  is  to  guard 
the  wife  from  actual  violence  or  danger  to  her  person,  there  are  neverthe- 
less exceptions  to  this  rule.  Thus,  spitting  on  the  wife  has  been  adjudged 
a  gross  act  of  cruelty,  on  the  ground,  it  is  presumed,  of  indignity  to  the 
person.5  So  also  the  husband's  attempt,  when  affected  with  the  venereal 
iisease,  to  force  his  wife  to  his  bed,  is  of  a  mixed  nature,  partly  cruelty 


1  Lawrence  v.  Lawrence,  3  Paige,  267.  2   Phill.  111.     Warring  v.  Warring,  id. 

1  Whispell  v.  TVhispell,  4  Barb.  217.  132.     Ilolden  v.  Holden,   1    Hagg.  Eccl. 

■  Barber  v.  Barber,  before  V.  Ch.  4th  R.  453. 
..irciiit,  1846.     Am.  Law  Journ.  for  1849,        6  D'Aguilar  v.  D'Aguilar,  1  Hagg.  Eccl. 

193.  777.     Shelf.  M.  &  D.  430. 

*  Harris  v.  Harris,  2  Hagg.  Eccl.  R.  154. 


662  Of  Persons  under  Disability.  [Ch.  & 

and  partly  evidence  of  adultery.1  So  also  the  husband's  attempt  to  de- 
bauch his  own  women-servants,  is  a  strong  act  of  cruelty,2  perhaps  not 
alone  sufficient  to  authorize  a  divorce,  but  which  might  weigh,  in  conjunc- 
tion with  others,  as  an  act  of  considerable  indignity  and  outrage  to  his 
wife's  feelings.  The  attempt  to  make  a  brothel  of  his  own  house,  is 
brutal  conduct,  of  which  the  wife  has  a  right  to  complain.  This  is  the 
language  of  Lord  Stowell,  in  Popkin  v.  Popkin.  Also  a  groundless  and 
malicious  charge  against  the  wife's  chastity,  followed  up  by  turning  her 
out  of  doors,  and  not  attempted  to  be  pleaded  or  proved,  may  be  alleged, 
with  other  acts  of  cruelty,  as  a  ground  for  a  separation.  And  in  the 
principal  case  of  Barber  v.  Barber,  a  groundless  charge  by  the  husband 
against  the  wife  of  physical  incompetency,  followed  up  by  legal  proceed- 
ings to  establish  its  truth,  which  proved  abortive,  was,  in  connection  with 
other  facts,  adjudged  legal  cruelty,  and  a  decree  of  separation  was 
granted. 

Such  is  the  rule  with  respect  to  the  term  cruelty.  Although  primarily 
it  has  reference  to  such  conduct  in  the  husband  as  may  endanger  the 
safety  or  health  of  the  wife,  yet  it  may  exist  where  there  is  no  danger  to 
her  person,  as  in  spitting  upon  her ;  and  also  where  no  personal  violence 
was  inflicted  upon  her,  as  in  attempts  on  his  part  to  debauch  his  own 
servants.3 

When  the  suit  is  brought  by  the  husband  for  separation,  on  the  ground 
of  the  cruelty  of  the  wife,  the  court  will  require  a  strong  case  to  justify 
its  interference.  In  general,  the  superior  strength  of  the  husband,  in 
connection  with  his  common  law  rights  over  his  wife,  renders  the  interpo- 
sition of  courts  of  equity  of  rare  occurrence.  On  one  occasion  the  chan- 
cellor observed,  that  to  sustain  a  bill  of  this  kind,  by  the  husband  against 
the  wife,  it  is  not  sufficient  to  show  a  single  act  of  violence  on  her  part 
towards  him,  or  even  a  series  of  such  acts  ;  so  long  as  there  is  no  reason 
to  suppose  that  he  will  not  be  able  to  protect  himself  and  his  family  by 
a  proper  exercise  of  his  marital  power.  It  is  material,  therefore,  that  he 
should  be  permitted  to  establish  such  continued  course  of  bad  conduct  on 
the  part  of  the  wife,  towards  himself  and  those  who  are  under  his  protec- 
tion and  care,  as  to  satisfy  the  court  that  it  is  unsafe  for  him  to  cohabit  or 
live  with  her.4  This  case  came  before  the  chancellor  on  exceptions  tc 
the  complainant's  bill,  and  the  charges  in  the  bill  which  the  chancelloi 


■  Durant  v.  Durant,  1  Hagg.  Ecc.   E.        s  Otway  v.  Otway,  2  Phill.  95. 
733,  767.  *  Perry  v.  Perry,  1  Barb.  Oh.  R.  518. 

2  Popkin  v.  Popkin,  note  to  Durant  v. 
Durant,  id  767. 


Ch.  8.J  Marrieu  "Women.     Divorce.  60S 

held  were  pertinent,  and  which,  if  proved,  would  entitle  the  husband  to 
a  decree  of  separation,  on  the  ground  that  his  life  Avould  be  in  danger 
should  he  continue  to  reside  under  the  same  roof,  were,  in  substance,  that 
she  drove  his  sick  daughter  from  her  bed  and  wounded  her,  and  finally 
by  violence  forced  her  to  leave  his  house,  and  probably  shortened  her  life 
by  breaking  in  her  ribs  ;  that  she  drove  his  son  from  the  house  when  he 
was  wasting  away  with  consumption ;  that  she  beat  and  lacerated  her 
own  grown  up  son  in  such  a  manner  as  to  confine  him  to  the  house  for 
several  days;  that  her  conduct  towards  another  daughter,  who  was  dying 
with  consumption,  was  such  as  to  render  it  necessary  for  the  complainant 
to  secure  the  room  of  such  daughter  by  locks  and  bolts,  whenever  he  was 
from  home,  to  protect  her  from  the  violence  of  the  defendant ;  that  the 
clergyman,  who  was  called  to  administer  the  consolations  of  religion  to 
the  dying  daughter,  was  compelled  to  discontinue  his  visits  in  consequence 
of  the  defendant's  conduct  towards  him  ;  that  she  beat  her  own  grown  up 
daughter,  pulled  a  handful  of  hair  from  her  head,  and  injured  her  so 
severely  that  she  fainted  ;  that  at  other  times  she  struck  the  same  daugh- 
ter with  violence,  threw  a  cup  of  tea  in  her  face,  struck  her  on  the  hen  d 
with  an  earthen  vessel,  threw  her  upon  the  floor  and  jumped  on  her,  &c.  ; 
that  she  beat  a  child,  who  was  bound  to  her,  so  severely,  that  the  child 
was  discharged  by  the  magistrates  ;  that  she  attacked  a  workman  em- 
ployed by  the  complainant,  with  dangerous  weapons,  and  drove  him  from 
the  house  ;  that  by  her  violence  and  misconduct,  she  disturbed  and  at  last 
compelled  her  husband  to  abandon  his  accustomed  family  worship  ;  and 
that  she  was  in  the  daily  habit  of  using  obscene  and  blasphemous  lan- 
guage in  the  presence  of  the  family,  and  at  their  meals.  These  facts, 
said  the  chancellor,  if  proved,  or  if  admitted  by  the  answer,  will  have  a 
very  great  influence  in  giving  character  to  the  acts  of  personal  violence, 
which  are  stated  in  the  bill  as  having  been  committed  by  the  defendant 
upon  the  complainant  And  if  they  are  the  proper  subjects  of  proof,  they 
may  be  stated  in  the  bill. 

The  defendant,  it  seems  by  a  subsequent  report  of  the  case,1  suffered 
the  bill  to  be  taken  as  confessed,  and  the  case  came  again  before  the  chan- 
cellor on  the  master's  report  of  the  evidence,  by  which*  it  appeared  that 
the  facts  were  proved  substantially  as  alleged.  The  testimony  showed 
also  that  the  defendant  had  committed  personal  violence  upon  the  com- 
plainant himself,  and  frequently  wished  him  dead ;  so  as  to  render  it  wholly 
improbable  that  he  could,  by  any  discreet  exercise  of  his  marital  power, 
keep  her  within  such  control  that  his  health  at  least  would  not  be  endan- 

1  Perry  v.  Perry,  2  Barb.  Ch.  P.  311. 


664  Of  Persons  under  Disability.  [Ch   6 

gered,  so  long  as  he  continued  to  live  -with  her.  It  was  admitted  that 
tfie  evidence  of  her  violence  and  brutality  towards  other  members  of  the 
/amily  would  not,  of  itself,  entitle  the  complainant  to  a  decree  of  separa 
tion.     A  decree  of  separation  was  granted. 

This  was  doubtless  an  extreme  case.  It  probably  would  not  require  a 
concurrence  of  all  the  acts  of  violence  which  were  charged  in  this  case 
to  entitle  a  husband  to  a  decree  of  separation  from  his  wife. 

An  application  for  a  divorce  on  the  ground  of  adultery,  or  for  a  sepa 
ration  from  bed  and  board  for  cruelty,  gives  rise  to  the  interference  of 
the  court  in  favor  of  the  wife,  to  afford  her,  out  of  her  husband's  estate 
the  means  of  prosecuting  or  defending  the  suit ;  of  supporting  her  during 
its  pendency  ;  of  making  proper  order  for  the  care,  custody  and  education 
of  the  children  ;  and  on  the  final  success  of  the  wife,  of  allowing  to  her 
suitable  alimony  out  of  her  husband's  estate.  The  power  of  the  court 
over  this  subject  is  full  and  ample,  and  has  frequently  and  beneficently 
been  exerted.1 

Where  a  woman  files  a  bill  to  have  a  marriage  declared  null,  on  the 
ground  of  impotence,  or  tho  original  illegality  of  the  contract,  it  seems 
that  presumptively  she  is  not  entitled  to  ad  interim  alimony,  or  an  allow- 
ance for  expenses  of  the  suit ;  but  where  the  man  files  such  a  bill,  and 
the  woman  denies  the  illegality  of  the  contract  on  oath,  or  the  physical 
incapacity,  she  is  entitled  to  alimony  and  an  allowance  to  defend.2  The 
allowance  in  such  cases  does  not  depend  wholly  upon  the  statute,  but 
upon  the  practice  of  the  court  as  it  existed  before  the  statute.3 

The  making  of  an  allowance  to  the  wife,  to  enable  her  to  carry  on  her 
suit,  or  to  conduct  her  defense,  whether  the  bill  be  for  a  divorce  or  for  a 
separation,  is  discretionary  with  the  court.4  Where  it  is  probable,  how- 
ever, that  the  wife  may  succeed,  especially  in  a  suit  for  a  divorce  on  the 
ground  of  adultery  of  the  husband,  in  which  the  wife  is  allowed  to  prose- 
cute in  her  own  name,  and  where  it  appears  that  she  is  entirely  destitute 
of  the  means  of  carrying  on  the  suit,  it  is  almost  a  matter  of  course  to  re- 
quire the  husband  to  make  her  a  reasonable  allowance,  according  to  his 
ability,  for  the  necessary  expenses  of  the  suit,  and  to  require  the  husband 
to  furnish  her  with  the  necessary  clothing  and  sustenance  during  the  pen- 


1  2  R.  S.  147,  148.  1  Lee's  Eccl.  R.  by  Pliill.  209.     Ports- 

2  North  v.  North,  1  Barb.  Ch.  R.  241.  mouth,  Earl  of,  v.  Portsmouth,  3  Add. 
Barber    v.   Barber,  MS.  before  V.    Ch.  Eccl.  R.  63. 

ith  circuit,  1846.  *  2  R.  S.  148,  §  58.    Jones  v.  Jones,  2 

'  North  v.  North,  supra.    Bird  v.  Bird,  Barb.  Ch.  R.  146. 


Cn.  8.]  Married  Women.     Alimony.  665 

lency  of  the  suit,  if  he  is  able  to  do  so.1  The  same  general  principles 
arc  applicable  to  suits  brought  by  the  wife  against  the  husband,  for  a  sep- 
aration from  bed  and  board,  on  the  ground  of  cruel  treatment,  or  of  aban- 
donment. But  in  this  class  of  cases  the  wife  cannot  institute  a  suit 
against  her  husband,  without  the  assistance  of  a  responsible  person  as  her 
next  friend,  who  is  to  be  answerable  to  the  defendant,  for  the  costs  of  the 
litigation,  if  the  complainant  fails  in  the  suit.  And  the  court,  in  cases  of 
this  nature,  will  not  direct  an  advance  to  be  made  to  the  wife,  or  to  the 
next  friend,  for  the  purpose  of  carrying  on  the  suit,  or  for  alimony  pen- 
dente lite,  where  there  is  no  probability  that  the  complainant  will  be  able 
to  succeed  in  her  suit.2 

On  one  occasion,3  Sir  William  Scott  said,  "  in  suits  instituted  by  the 
husband  or  the  wife,  for  I  consider  that  fact  to  be  indifferent,  the  wife  is 
a  privileged  suitor,  as  to  costs  and  alimony  ;  and  on  the  same  principle 
that  the  whole  property  is  supposed  by  law  to  be  in  the  husband.  If  the 
wife,  therefore,  is  under  the  necessity  of  living  apart,  it  is  also  necessary 
that  she  should  be  subsisted  during  the  pendency  of  the  suit ;  and  that 
she  should  be  enabled  to  procure  justice  by  being  provided  with  the  means 
of  defense."  And  on  another  occasion,4  the  same  learned  judge  said,  that 
in  general  the  husband  is  bound  to  defray  the  wife's  costs  ;  otherwise  the 
wife  would  be  disarmed  and  denied  justice.  The  husband  has  by  thelaAV 
of  this  country  all  the  property  ;  and  therefore  the  wife  must  have  the 
means  of  self  defence  and  of  subsistence  from  him  ;  but  where  she  has  a 
separate  fortune,  the  court  always  considers  whether  such  separate  means 
arc  sufficient  for  self  defence  and  self  subsistence.  These  principles  have 
been  approved  by  the  chancellor,  and  form  apart  of  our  jurisprudence  on 
this  subject.  If  the  court  is  satisfied  the  wife  has  no  reasonable  ground 
of  complaint,  or  is  altogether  in  the  wrong,  it  might,  in  the  exercise  of  a 
sound  discretion,  refuse  the  means  to  enable  her  to  carry  on  an  unjust 
litigation  at  the  expense  of  her  husband.  But  it  would  be  manifestly 
unjust  to  condemn  the  wife  unheard,  or  upon  an  ex  parte  affidavit  of  wit- 
nesses, when  she  has  had  no  opportunity  to  cross-examine  them,  or  to 
disprove  their  allegations.5 

In  an  application  by  the  wife  for  an  allowance  and  for  the  means  of 

1  2  B.  S.  148,  §  58.     Jones  v.  Jones,  2  4  D'Aguilar  v.  D'Aguilar,  1  Ilagg.Eccl. 

Barb.  Ch  R.  146.  R.  777. 

1  Id.  U7.     Wood  v.   Wood,  2  Paige,  6  Wood  v.  Wood,   2  Paige,   113,  114. 

454;  S.  C.  8  Wend.  377.    Code  of  1851,  Hollerman  v.  Hollerraan,  1  Barb.  S.  0. 

5151.  R.  64.     Bisscll  v.  Bissell,  id.  430.     Sny- 

*  Wilson  v.  Wilson,  2  Consist.  R.  204.  der  v.  Snyder,  3  id.  621.     Jones  v.  Jones, 

2  Barb.  Cb.  R.  146. 

Eq.  J  Oil.  84 


666  Of  Persons  under  Disability.  [Ch.  8 

making  her  defense,  she  must  deny  in  her  petition,  on  oath,  the  truth  of 
the  charges  made  against  her,  or  show  therein  some  valid  defense  to  the 
husband's  suit.1  And  the  court  will  not,  on  such  a  motion,  decide  as  to 
her  guilt,  by  opposing  affidavits,  but  leave  her  to  be  indicted  and  pun- 
ished for  perjury,  if  her  denial  of  the  charges  upon  oath  be  untrue.2 

The  court  has  always  exercised  a  broad  and  liberal  discretion,  as  well 
as  an  indulgent  consideration  towards  the  wife ;  especially  where  the 
husband  is  of  sufficient  ability,  and  has  manifested  a  delay  or  backward- 
ness in  prosecuting  his  complaint.  In  one  case,  where  the  bill  was  filed 
by  the  husband  for  a  divorce  on  the  charge  of  adultery,  and  the  charge 
was  denied  under  oath  by  the  defendant,  and  an  issue  was  awarded  to  try 
the  question  ;  and  an  alloAvance  was  made  for  the  expenses  of  the  suit 
and  for  ad  interim  alimony ;  the  complainant  having  neglected  to  bring 
on  the  issue  to  be  tried,  the  defendant,  upon  the  affidavit  of  her  attending 
physicians,  showing  that  her  health  was  such  that  the  safety  of  her  life 
required  that  she  should  spend  the  winter  months,  either  in  the  "West 
Indies  or  in  the  southern  states  ;  and  upon  hearing  counsel  for  the  com- 
plainant, the  vice  chancellor  ordered  a  gross  sum  of  $400  to  be  paid  to 
her  immediately,  for  the  expense  of  her  journey  and  board  for  four  months ; 
and  that  her  former  allowance  for  ad  interim  alimony  should  in  the  mean 
time  be  suspended.  The  income  of  the  husband  was  about  $2000  a  year. 
On  appeal  by  the  husband  to  the  chancellor,  it  was  contended  that  the 
court  was  not  authorized  to  make  an  allowance  for  that  purpose,  but  the 
order  was  affirmed  by  the  chancellor.3 

The  alimony  allowed  to  the  wife  pending  the  suit  is  much  smaller,  in 
proportion,  than  that  which  is  assigned  her  as  a  permanent  provision, 
after  she  has  obtained  a  decree  for  a  divorce  or  a  separation.4  If  the  bill 
is  improperly  filed,  or  is  multifarious,  so  that  a  decree  cannot  be  grounded 
upon  it,  alimony  or  an  allowance  for  costs  cannot  be  ordered.5  But  such 
an  allowance  has  been  ordered,  pending  a  demurrer  to  the  wife's  bill,  and 
may  be  granted  before  answer,  when  the  bill  is  filed  by  the  wife.6 

It  is  perhaps  impossible  to  fix  any  definite  rule  for  the  allowance  of 
ad  interim  alimony.  The  chancellor  said,  on  one  occasion,  that  the  hus- 
band who  is  guilty  of  adultery  voluntarily  subjects  himself  and  his  prop- 
erty to  the  jurisdiction  of  the  court,  so  far  as  to  enable  the  chancellor  to 
order  his  property  to  be  applied  to  the  support  of  his  family  during  the 

1  Osgood  v.  Osgood,  2  Paige,  621.  6  Rose  v.  Eose,  11  Paige,  166.  Wood  v. 

5  Id.  623.  Wood,  2  id.  452.     8  "Wend.  377. 

•  Lynds  v.  Lynds,  2  Barb.  Ch.  R.  72.  6  Mix  v.  Mix,  1  J.  Ch.  R.  108.    Dentoa 

*  Lawrence  v.  Lawrence,  3  Paige,  267.  v.  Denton,  1  id.  364. 
Germond  v.  Gernaond,  4  id.  643. 


Oh.  8.]  Married  Women.     Alimony.  6(»T 

litigation  and  afterwards.  The  court  may  also  compel  him  to  devote  a 
part  of  his  daily  earnings  to  the  same  object  pending  the  suit.1  In  that 
ease  the  bill  was  by  the  wife  for  the  adultery  of  the  husband,  and  there 
jvere  three  children  of  the  marriage,  the  eldest  of  whom  was  but  six  years 
old,  and  they  remained  with  the  mother  and  were  supported  by  her. 
The  income  of  the  husband's  property,  including  his  personal  services  as 
captain  of  a  coasting  vessel,  was  $35  a  month,  and  the  court  ordered  the 
defendant  to  pay  $25  a  month  for  the  support  of  his  wife  and  children 
pending  the  litigation. 

If  the  parties  stand  upon  an  equality  as  to  means,  both  depending  upon 
their  peas&nal  labor  for  support,  and  neither  party  earning  more  than 
enough  for  that  purpose,  the  court  has  declined  to  make  an  order,  which 
would  only  result  in  the  imprisonment  of  one  party  without  benefit 
to  the  other.2  And  so  if  the  wife  has  sufficient  property  of  her  own  to 
defray  the  expenses  of  the  litigation,  and  support  herself  during  its  pen- 
dency, there  is  no  occasion,  nor  is  it  usual,  to  order  the  husband  to  ad- 
vance any  more  until  her  own  means  are  exhausted.3 

With  respect  to  the  custody  of  the  children  of  the  marriage,  pending 
the  suit,  the  court  will  not,  in  general,  make  an  ex  parte  order,  but  will 
require  notice  to  be  given,  unless  it  be  a  case  of  urgent  necessity.4  An 
injunction  may  be  granted  to  prevent  the  children  from  being  removed 
out  of  the  state  until  the  court  can  be  applied  to,  to  dispose  of  the  ques- 
tion as  to  their  temporary  custody.5 

Where  the  parties  cohabit  together  during  the  suit,  the  court  will  not 
give  to  either  the  exclusive  charge  of  the  children.6 

In  one  case,7  Chancellor  Kent,  pending  a  bill  by  the  wife  for  a  divorce, 
en  the  ground  of  the  cruelty  of  the  husband,  and  under  the  peculiar  cir- 
cumstances of  the  case,  ordered  that  the  wife  should  have  the  exclusive 
custody,  care  and  direction  of  the  children,  and  that  the  husband  should 
not  be  permitted  to  visit  them,  except  under  the  direction  of  a  master  in 
chancery.  In  that  case,  the  husband  was  shown  to  be  intemperate,  vio- 
lent in  his  temper,  and  accustomed  to  treat  both  his  wife  and  children 
with  cruelty ;  and  he  had  no  property  of  his  own,  and  the  wife  was 
entitled  to  a  large  estate. 

After  the  rights  of  the  parties  have  become  fixed  by  the  decree,  ther,. 
is,  of  course,  no  longer  any  dispute  as  to  which  is  the  guilty  party.    The 

1  Kirbv  v.  Kirby,  1  Pa'ge,  262.  4  Lanrio  v.  Laurie,  9  Paige,  234. 

•  MS.  V.  Ch.  4th  circuit.  6  Id. 

•  Osgood   v.   Osgood,    2    Paige,    624.  6  Collins  v.  Collins,  2  id.  9. 
Morrell  v.  Morrell,  2  Barb.  S.  C.  R.  480.  T  Codd  v.  Codd,  2  J.  Ch.  K.  141. 
Collins  v.  Collins  2  Paige,  9. 


668  Of  Persons  under  Disability.  [Ch.  8 

right  to  alimony,  the  custody,  care  ami  education  of  the  children,  as  well 
as  their  legitimacy,  and  the  costs  of  the  litigation,  remain  to  be  disposed 
of  by  the  court. 

If  the  separation  be  granted,  at  the  suit  of  the  husband,  for  cruelty  to 
him,  and  consequently  the  wife  be  found  to  be  the  guilty  party,  the  court  has 
no  power  to  order  the  husband  to  provide  for  her  support.'  And  in  case 
the  divorce  be  for  the  adultery  of  the  wife,  we  have  already  seen  that  by  the 
statute  the  husband's  interest  in  her  real  and  personal  estate  is  not  affected 
by  the  decree  ;*  and  that  she  forfeits  her  title  to  dower  in  his  estate. 

With  respeet  to  the  amount  which  shall  be  allowed  to  the  wife  out  of 
her  husband's  estate,  upon  a  divorce  for  the  adultery  of  the  husband,  or 
for  his  cruelty  towards  her,  the  general  rule  was  stated  by  Chancellor 
Kent,  on  one  occasion,  to  be,  to  allow  the  wife  a  third,  or  at  least  a  fourth 
part  of  the  income  of  the  husband's  real  estate,  and  that  it  is  in  the 
power  of  the  court  to  vary  the  allowance,  from  time  to  time,  according  to 
the  circumstances  of  the  parties.3  In  a  case  before  Chancellor  Walworth, 
the  court  allowed  an  annuity,  equal  to  the  value  of  one  third  of  the  hus- 
band's property  at  six  per  cent,  and  would  have  allowed  her  the  value 
of  one  half,  if  she  had  been  discreet,  prudent  and  submissive  to  her  hus- 
band.4 The  case  shows  that  the  prior  conduct  of  the  wife,  though  not  a 
justification  of  the  defendant's  conduct,  will  not  be  without  its  influence, 
in  fixing  the  final  alimony  in  the  case. 

This  subject  underwent  much  discussion  before  the  vice  chancellor, 
the  chancellor  and  the  court  of  errors,  in  a  celebrated  case,  where  the 
amount  was  fixed  by  the  vice  chancellor,  without  a  reference.5  In  that 
case  it  was  left  in  doubt  whether,  upon  a  decree  for  a  divorce  or  separa- 
tion, the  court  could  award  a  gross  sum  for  alimony,  instead  of  an  annuity, 
as  is  generally  done.  The  vice  chancellor  intimated  that  an  annuity  only 
could  be  granted,  and  the  chancellor  waived,  as  immaterial  on  that  appeal, 
a  discussion  of  the  question,  and  the  point  was  thus  left  undecided  by 
him.6  The  annuity  allowed  by  the  vice  chancellor  was  $10,000  a  year, 
to  commence  at  the  date  of  the  decree.  On  an  appeal  by  the  defendant, 
the  chancellor  affirmed  the  decree,  with  a  modification,  directing  the  annu- 
ity to  commence  from  the  filing  the  bill,  and  in  computing  the  arrearages, 
to  deduct  the  ad  interim  alimony  which  had  been  received  by  her  or  her 
solicitor.     The  effect  of  this  modification  was  to  add  about  $12,000  to  the 

1  Palmer    v.    Palmer,    1  •  Paige,    276.        4  Peckford  v.  Peckford,  1  Paige.  274. 
Perry  r.  Perry,  2  Barb.  Ch.  R.  311.  5  Burr  v.  Burr,  10  Paige,  22 ;  affirmed 

*  2  P.  S.  146,  §  47,  and  see   ante.  7  Hill.  207. 
»  Miller  v.  Miller,  6  J.  Ch.  R.  91.  6  Burr  v.  Burr,  10  Paige,  26,  37 


Cli.  8. J     Married  "Women.     Restoration  of  Property.  6GG 

decree  of  the  vice  chancellor.  The  chancellor  also  directed  that  the  wife 
should  have  the  power  to  dispose  of  any  portion  of  it  that  might  remain 
at  her  death,  by  will  or  otherwise,  in  case  the  husband  should  survive 
her.     The  decree  of  the  chancellor  was  affirmed  by  the  court  of  errors. 

This  case  was  peculiar  in  its  character,  "  and  if  ever  a  case  called  for 
an  extraordinary  allowance,"  said  the  chancellor,  ''this  is  one;  for  I 
fchjnk  it  is  without  a  parallel  in  this  or  any  country."  It  was  a  bill  filed 
for  a  separation  by  the  wife  for  cruel  treatment  by  the  husband.  The 
conduct  of  the  wife  was  shown  to  have  been  exemplary,  and  unexception- 
able, during  the  marriage.  She  was  shown  to  have  brought  to  her  hus- 
band at  the  marriage  a  sum  of  money,  which,  had  it  been  then  invested, 
would  have  produced,  at  the  time  of  the  decree,  an  annuity  of  two  thou- 
sand dollars  a  year.  The  estate  of  the  husband  was  from  half  a  million 
to  a  million  of  dollars,  and  but  one  person  who  had  any  claims  upon  his 
bounty.1  The  English  decisions  show  that  from  a  third  to  a  moiety  is 
often  allowed  in  this  class  of  cases,  and  that  the  element  of  punishment 
for  the  husband's  misconduct,  as  in  actions  where  exemplary  damages 
are  allowed  at  law,  has  in  some  instances  prevailed;  as  seems  to  h.ive 
been  countenanced  in  this  case,  both  by  the  vice  chancellor  and  chancel- 
lor,  and  by  the  majority  of  the  court  of  errors.2 

We  have  hitherto  considered  the  relief  which  equity  affords  to  the  wife, 
on  a  divorce  or  separation,  out  of  the  estate  of  the  husband.  It  remains 
that  something  be  said  with  respect  to  the  protection  which  the  court 
affords  the  wife  against  the  claim  of  the  husband  or  his  creditors  to  her 
property,  and  of  its  power  to  restore  it  to  her.  The  jurisdiction,  in  this 
respect,  does  not  rest  upon  the  statutes  of  1848  and  1849  for  the  more 
effectual  protection  of  the  property  of  married  women,  but  springs  from 
the  principles  of  natural  justice,  and  which  are  declared  also  by  the 
Revised  Statutes.3  The  court  in  these  cases  considers  the  husband  as 
having,  by  his  misconduct  and  criminality,  forfeited  all  right  to  the  wife's 
property,  which  he  acquired  by  virtue  of  the  marriage,  whether  the 
same  be  in  possession  or  in  action.  And  upon  the  ground  that  she  is  in 
equity  entitled  to  a  restoration  of  the  property,  which  he  has  forfeited  by 

1  See  opinion  of  V.  Ch.  10  Paige,  26  *  Holmes  v.   Ilolmes,    4    Barb.    296 

to  29,  where  the  facts  are  stated.  Van  Duzer  v.  Van  Duzer,  6  Paige,  3G6 

3  Mytton  v.  Mytton,  3  Ilairg.  Ecc.  R.  656.  Fry  v.  Fry,  7  id.  461.     Rcnwkk  v.  Ren- 
Smith  v.  Smith,  2  Phill.  237.  Case  of  Earl  wick,    10   id.    420.     2   R.   S.    146,    147. 
of  Pomftet,  decided  at  the  Arches  court  Meehan  v.  Meehan,  2  Barb.  S.  C.  R.  377, 
ir.  1796,  and  found  in  Smith  v.  Smith,  Sacket  v.  Giles.  3  Barb.  Ch.  R.  204, 
*uorn.     Otway  v.  Otway.  2  Phill.  R.  109 


670  Of  Persons  under  Disability.  [Cli.  8 

a  "willful  breach  of  the  marriage  contract,  the  court  may,  upon  a  dissolu 
tion  or  permanent  suspension  of  the  marriage  contract,  restore  to  the 
injured  wife  the  whole  of  her  property,  which  has  not  already  passed 
into  the  hands  of  bona  fide  purchasers.  Upon  the  ground,  also,  that  her 
equitable  claim  relates  back  to  the  time  of  the  commission  of  the  offense 
which  entitled  her  to  a  divorce  or  suspension  of  the  marital  rights  of  the 
husband.;  the  court  may  not  only  protect  that  equity  against  the  husband 
himself,  but  also  against  all  others  except  bona  fide  purchasers,  or  those 
who  have  obtained  a  specific  lien  upon  the  property  without  notice  of 
her  equitable  rights,  and  that  she  intended  to  enforce  them  by  a  bill  for 
a  separation.  A  judgment  creditor  who  has  only  a  general  lien,  and 
which  accrued  subsequently  to  the  husband's  forfeiture  of  Ms  marital 
rights,  is  not  entitled  to  enforce  it  against  this  prior  equity  of  the  wife.1 
Though  the  right  of  the  wife  to  the  immediate  use  of  her  land,  if  she 
establishes  her  right  to  a  decree  of  separation,  be  superior  to  the  liens  of 
the  judgment  creditors  of  her  husband,  yet  if  the  husband's  interest  be 
sold  under  the  judgment  while  the  parties  are  living  together  as  man 
and  wife,  and  the  purchaser  or  redeeming  creditor  has  no  notice  of  the 
wife's  right  to  a  separation,  he  is  entitled  to  protection  as  a  bona  fide 
purchaser.  The  right  of  the  husband  to  redeem  being  expired,  the  wife 
cannot  redeem  in  the  three  months  thereafter  ;  and  it  is  immaterial  to  her 
whether  the  purchaser  or  a  redeeming  creditor  acquires  the  legal  title.2 

With  regard  to  the  care  and  custody  of  the  children,  after  a  final 
decree  for  a  divorce  or  separation,  the  object  is  not  to  gratify  the  wishes 
of  the  parents  merely,  but  to  protect  and  provide  for  the  children  of  the 
marriage,  whose  condition  cannot  fail  to  awaken  the  sympathy  of  the 
court.3  In  the  last  mentioned  case,  the  divorce  having  been  granted 
for  the  adultery  of  the  husband,  the  care  and  custody  of  the  infant 
daughter  of  the  marriage  was  given  to  the  mother.  In  other  cases,  where 
the  divorce  was  for  the  cruelty  of  the  husband,  the  custody  of  the  infant 
children  was,  under  the  circumstances,  given  to  the  mother.4  The  right 
of  the  father  to  the  custody  of  his  infant  children,  independently  of  a 
bill  for  a  divorce  or  separation,  may  be  lost  by  his  misconduct ;  and 
equity  has  an  undoubted  right  so  to  dispose  of  the  question  as  will 
boat  promote  their  interest  and  welfare.5     But  the  statute  confers  upon 

Van  Duzer  v.  Van  Duzer,  supra,  and  4  Codd  v.    Codd,   2  J.   Ch.    R.    141. 

the  cases  last  cited.  Barere  v.  Barere,  4  id.  187. 

*  Sacket  v.  Giles,  3  Barb  Ch.  R.  204.  6  See   ante.     Mercein   v.    The  People 

•  Cook  v.  Cook,  1  Barb.  Ch.  R.  639.  25  Wend,  64,  103.     Wellesley  v.  Beau- 

fort, 2  Rnss.  Ch.  C.  1. 


Ch.  8.]  •  Idiots,  Lunatic. 3,  &c.  671 

the  court,  which  pronounces  the  decree,  ample  power  to  make  order  as 
between  the  parties  for  the  custody,  care  and  education  of  the  children 
of  the  marriage,  as  may  seem  necessary  and  proper,  and  may  at  any 
time  thereafter  annul,  vary  or  modify  such  order.1  Though  it  may  he 
improper  to  entrust  the  custody  of  an  infant  daughter  to  a  parent  who 
has  been  convicted  of  adultery  and  divorced  for  that  cause ;  yet  the  stat- 
ute contemplates  that  there  may  be  a  reformation  of  conduct,  or  other 
change  of  circumstances,  which  would  justify  a  change  of  the  order,  or  a 
modification  of  it. 

In  actions  of  this  kind  the  question  of  costs  has  always  been  in  the 
discretion  of  the  court,  and  is  still  so  left  by  the  Code  of  Procedure.  It 
is  usual  that  the  prevailing  party  recovers  costs.  But  if  the  wife  fails  in 
her  suit  no  decree  can  be  made  against  her  for  costs,  if  she  has  no 
separate  estate.2  The  next  friend  of  the  wife,  complainant,  is  liable  for 
her  costs,  in  case  she  fails  in  her  action,  and  costs  are  allowed.  And  on 
an  appeal  by  the  husband,  against  whom  a  decree  has  been  pronounced, 
the  bond  for  costs  must  be  given  to  the  next  friend  of  the  plaintiff,  or  to 
some  officer  of  the  court  in  trust  for  the  wife.3 


SECTION  III. 

Or  IDIOTS,  LUNATICS,  PERSONS  OF  UNSOUND  MIND,  AND  PERSONS  INCAPABLE 
OF  CONDUCTING  THEIR  OWN  AFFAIRS,  IN  CONSEQUENCE  OF  HABITUAI 
DRUNKENNESS. 

The  subject  of  mental  capacity  arises  in  several  ways.  In  courts  both 
of  law  and  equity  a  direct  issue  may  be  made,  as  to  the  capacity  of  a 
party  to  make  a  contract,  or  of  a  testator  to  make  a  will,  and  in  these 
cases  the  rules  of  law  and  equity  are  the  same.4  In  courts  of  criminal 
jurisdiction,  the  question  may  arise  with  respect  to  the  responsibility  of 
the  accused  for  his  acts  charged  as  criminal,  and  in  this  case  the  same 
rule  seems  to  prevail  that  is  recognized  with  reference  to  contracts.  The 
question  may  also  arise,  in  an  action  of  false  imprisonment,  for  committing 
the  party  to  the  charge  of  a  lunatic  asylum.  And  it  is  necessarily  in- 
volved in  every  proceeding  under  the  statute  for  the  safe  keeping  and 

1  2  R.  S.  148,  §  59.  3  Burr  v.  Burr,  10  Paige,  160. 

a  Perry  v.  Perry,  2  Paige,  501.  Wood  4  Bennet  v.  Yade  2  Atk.  327.  Os- 
T.  Wood,  2  id.  454.  mo  ml  v.  Fitzroy,  3  P.  Wms.  130, 


<572  Of  Persons  under  Disability.  TCh.  8 

care  of  lunatics,  whether  the  proceeding  have  reference  to  the  security  of 
the  public  against  apprehended  mischief,  or  he  intended  for  the  benefit  or 
restoration  of  the  person  thus  committed.1 

The  discussion  of  the  subject,  under  the  foregoing  aspects,  belongs  more 
appropriately  to  works  devoted  exclusively  to  the  subject,  or  to  writers  on 
medical  jurisprudence,  or  criminal  law,  than  to  a  treatise  on  equity  juris- 
prudence. The  aspect  in  which  the  infirmity  is  viewed  by  a  court  of 
equity,  when  the  object  is  to  protect  the  party  laboring  under  the  disa- 
bility, from  his  own  acts,  and  to  take  the  guardianship  of  his  person  and 
estate,  is  in  some  respects  different  from  the  light  in  which  it  appears  to 
a  tribunal,  where  the  sole  question  is  whether  the  party,  whose  conduct  is 
in  question,  had  sufficient  mental  capacity  to  make  a  deed,  or  perpetrate 
a  crime.  A  party  may,  perhaps,  properly  be  the  subject  of  medical  treat- 
ment, at  an  asylum  for  the  insane,  who  at  the  time  is  responsible  for  his 
crimes,  and  whose  contracts  could  not  be  successfully  assailed.  The  ol> 
•ect  there  is  to  remove  the  disease,  in  its  incipient  stages,  rather  than  to 
orotect  society,  or  the  individual  himself,  from  meditated  acts  of  violence. 
In  modern  times  the  courts  of  equity  have  upheld  inquisitions  as  entitling 
the  party  to  the  protection  of  the  court,  and  subjecting  his  person  to  its 
pontrol,  which  a  century  ago  would  have  been  quashed.2 

The  nature  and  origin  of  the  jurisdiction  of  the  court  of  chancery  in 
England,  over  idiots  and  lunatics,  do  not  very  clearly  appear  ;  though 
the  better  opinion  is,  that  the  custody  of  that  class  of  persons,  being  a 
branch  of  the  prerogative,  the  appointment  of  the  committee  necessa- 
rily devolved  on  the  person  to  whom  that  branch  of  the  prerogative  was 
entrusted.3  Though  the  jurisdiction  in  the  case  of  idiots  was  anciently,  in 
some  respects,  different  from  that  of  lunatics,  yet  practically,  the  differ- 
ence, in  modern  times,  is  of  no  essential  importance  ;  and  in  this  state,  if 
it  ever  existed,  no  trace  of  it  remains  in  our  jurisprudence  at  this  clay. 

By  the  Revised  Statutes,  the  care  and  custody  of  all  idiots,  lunatics, 
persons  of  unsound  mind,  and  persons  incapable  of  conducting  their  own 
affairs,  in  consequence  of  habitual  drunkenness,  and  of  their  real  and  per- 
sonal estates,  were  vested  in  the  chancellor,  and  now,  by  the  constitution  of 
1846,  in  the  supreme  court.  By  statute,  the  court  is  to  see  that  their 
estates  be  not  wasted  or  destroyed,  and  to  provide  for  the  safe  keeping  and 
maintenance  of  the  persons  above  mentioned,  and  for  the  maintenance  of 
tiieir  families,  and  the  education  of  their  children,  out  of  their  personal 

See  the  statutes,  2  K.  S.  37,  4th  ed.  3  1  Fonb.  Eq.  B.  1,  ch.  2,  §  2,  n.     2 

'  TJidgeway  v,  Darwin,  8  Ves.  66.  67.      Mad.  Ch.  Pr.  565. 


Ch.  8.]  Idiots,  Lunatics,  &c.  673 

estates  and  the  rents  and  profits  of  their  real  estate  respectively.1  Und.Hr 
the  former  constitution,  the  vice  chancellors  in  their  respective  circuits 
had  concurrent  jurisdiction  with  the  chancellor,  subject  to  his  appellate 
jurisdiction,  of  all  matters  of  this  kind.2  And  under  the  present  consti 
tution,  the  county  courts  of  the  respective  counties  have  concurrent  juris- 
diction with  the  supreme  court,  subject  to  appeal  to  the  latter  court,  of 
"  the  care  and  custody  of  the  person  and  estate  of  a  lunatic,  or  person  of 
unsound  mind,  or  an  habitual  drunkard,  residing  within  the  county  of 
which  he  is  such  judge."3 

Although,  in  this  state,  it  is  of  no  importance  whether  a  party  be  found 
an  idiot,  a  lunatic,  or  a  person  of  unsound  mind,  who  is  incapable  of  con- 
ducting his  own  affairs,  as  the  same  consequence  results  from  either  find- 
ing ;  yet,  as  the  terms  idiocy  and  lunacy  frequently  occur  in  the  books, 
it  may  be  expedient  briefly  to  define  them,  in  connection  with  the  other 
expression  in  the  statute,  unsound  mind. 

An  idiot,  or  natural  fool,  is  one  that  hath  had  no  understanding  from 
his  nativity  ;  and  therefore  is  by  law  presumed  never  likely  to  attain  any. 
By  the  old  common  law,  there  was  a  writ  de  idlota  inr/uirendo,  to  inquire 
whether  a  man  be  an  idiot  or  not ;  which  was  tried  by  a  jury  of  twelve 
men,  and  if  they  found  him  punts  idiot  a,  the  profits  of  his  lands  and  the 
custody  of  his  person  were  granted  by  the  king  to  some  subject  who  had 
interest  enough  to  obtain  them.  This,  according  to  Blackstone,  was 
originally  a  branch  of  the  king's  revenue.  But  few  instances,  it  is  said, 
can  be  given  of  the  oppressive  exertion  of  it,  since  it  seldom  happens  that 
a  jury  finds  a  man  an  idiot  a  tiativitate,  but  only  uon  compos  mentis 
from  a  particular  time.4  A  man  is  not  an  idiot  if  he  hath  any  glimmer- 
ing cf  reason,  so  that  he  can  tell  his  parents,  his  age,  or  the  like  common 
matters.  But  a  man  who  is  born  deaf,  dumb  and  blind,  is  looked  upon 
by  the  law  as  in  the  same  state  with  an  idiot ;  he  being  supposed  incapable 
of  any  understanding,  as  wanting  all  those  senses  which  furnish  the  hu- 
man mind  with  ideas.5 

A  lunatic,  or  non  compos  mentis,  is  one  who  hath  had  understanding, 
but  by  disease,  grief  or  other  accident,  hath  lost  the  use  of  his  reason.6 
Under  the  general  name  of  non  compos  mentis,  which  Coke  says  is  the 
mrst  legal  name,  are  comprised  not  only  lunatics,  but  persons  under  freri- 

1  2  R.  S.  52.  •  1  Bl.  Com.  316,  317. 

'  I'l.  168.  *  Id. 

*  Code  of  Procedure,  £  30,  subd.  8.  e  Id.     1  Inst.  247. 

Kq.  Jck  85 


b'74  Of  Persons  under  Disability.  [Oh.  8. 

xies  ;  or  who  lose  their  intellect  by  disease;  and  those  nho  grow  deal 
dumb  and  blind,  not  being  born  so.1 

-  At  common  law.  it  was  presumed  that  an  idiot  would  always  remain  so ; 
but  that  a  lunatic  might  perhaps  be  restored  to  his  reason.  But  the  skill 
of  medical  science  has  shown  that  the  first  of  these  presumptions  is  un- 
founded, and  that  the  mind  of  the  idiot  is  susceptible  of  cultivation.  A 
beneficent  provision  has  been  made  by  this  state,  not  only  for  the  lunatic 
but  also  for  the  idiot ;  and  the  institutions  established  for  these  purposes 
have  proved  eminently  successful,  and  are  an  honor  to  the  distinguished 
names  by  whose  auspices  they  have  been  founded.2 

A  person  born  deaf  and  dumb  is  not  treated  by  us  as  an  idiot  or  non 
compos  vientis.  He  is  not  for  that  cause  alone  to  be  placed  under  a 
committee,  and  the  presumption  of  incapacity  is  merely  a  presumption  in 
his  favor,  to  guard  and  protect  him  against  imposition  and  fraud.3  There 
are  instances  in  this  state  and  elsewhere,  where  persons  born  deaf  and 
dumb  have  been  held  responsible  for  crime.4 

The  questions  of  jurisdiction,  in  matters  of  this  kind,  have  reference  to 
the  nature  and  degree  of  mental  imbecility  which  will  justify  the  inter- 
ference of  a  court  of  equity  in  awarding  a  commission,  and  in  placing  the 
person  and  estate  of  a  party  in  the  hands  of  a  committee.  The  terms 
idiot  and  lunatic  are  technical  terms,  and  words  of  well  known  signifi- 
cation ;  and  hence  there  is  no  difficulty,  when  the  inquisition  finds  the 
party  to  be  either  an  idiot  or  a  lunatic,  in  awarding  a  commission.  But 
there  are  cases  of  mental  weakness,  which  fall  short  of  idiocy  or  lunacy, 
that  sometimes  claim  the  protection  of  the  court,  or  become  the 
ground  of  relief.  In  this  class  of  cases,  if  the  imbecility  of  mind  be  not 
sufficient  of  itself  to  invalidate  a  contract,  it  will  still  be  a  circumstance 
of  great  importance  in  a  bill  to  set  aside  a  conveyance,  if  it  was  obtained 
by  undue  influence,  if  the  consideration  was  inadequate,  or  if  the  grantee 
stood  in  such  relation  to  the  grantor,  that  the  obtaining  of  the  deed  was  a 
breach  of  confidence  reposed  in  the  former  by  the  latter.  This  class  of 
cases  has  been  elsewhere  considered.  If  the  mental  incapacity  be  such, 
that  it  would  not  justify  a  jury  in  finding  the  grantor  to  be  of  unsound 
mind,  within  the  meaning  of  the  statute,  equity  will  not  set  aside  the 
deed  for  imbecility  alone.5 

As  the  statute  confers  on  the  court  jurisdiction  over  idiots,  lunatics. 

1  1  El.   Com.   317.    1  Inst.  246,  247.        3  Brower  v.  Fisher,  4  J.  Ch.  R.  441. 
26  "Wend.  299.  4  MS. 

8  See  the  various  statutes  on  these  sub-        6  Spragne  v.  Duel,  11  Paige,  480. 
jects  and  the  report  of  the  managers  to 
the  Legislature. 


OTi.  &  Unsound  Mind,  675 

persons  of  unsound  mind  and  habitual  drunkards,  it  becomes  impoitant 
to  inquire  what  is  meant,  in  tins  connection,  by  the  words  unsound  mind. 
Tbere  are  doubtless  various  degrees  of  unsoundness,  from  idiocy  to  the 
slightest  defect.  Indeed  it  was  said  on  one  occasion  by  Dr.  Haslam,  who. 
after  years  of  professional  observation  of  the  phenomena  of  mental  dis- 
ease, replied  to  the  question,  "Was  Miss  B.  of  sound  mind?"  that  he 
never  knew  any  human  being  who  was  of  sound  mind.1  When  the  term, 
unsound  mind,  has  reference  to  the  capacity  of  the  party  to  make  a  deed 
or  a  will,  the  courts  in  this  state  have  held  it  to  be  synonymous  to  idiocy 
and  lunacy,  as  importing  a  total  deprivation  of  memory  and  understand- 
ing.2 But  it  is  to  be  observed,  that  in  the  statute  of  wills,  all  persons 
have  the  power  thus  to  dispose  of  their  property,  except  idiots,  persons 
of  unsound  mind,  married  women  and  infants.3  The  term  lunatic  is  not 
mentioned,  and  is  obviously  embraced  in  the  term  unsound  mind.* 

But  the  statute  under  consideration,  after  using  the  well  known  terms, 
idiot  and  lunatic,  adds  that  of  persons  of  unsound  mind.  If  the  latter 
term  does  not  comprise  cases  not  found  in  the  former,  the  words  are  sense- 
less and  unmeaning.  In  one  case  the  chancellor  admitted,  that  mental 
imbecility  may  exist  in  various  degrees,  between  absolute  idiocy  and  the 
ordinary  state  of  mental  capacity,  as  it  exists  among  mankind  in  general. 
But  he  said  in  the  same  case,  that  to  constitute  a  case  of  unsoundness 
of  mind,  wbich  will  justify  the  court  in  taking  the  person  and  property  of 
a  freeman  into  its  possession,  and  committing  them  to  the  custody  of  an- 
other, his  mind  must  be  so  far  impaired  that  if  it  had  never  been  elevated 
above  that  state  of  capacity  from  his  birth,  it  would  have  constituted  a 
ense  of  idiocy.5  If  this  be  so,  the  term  unsound  mind,  in  the  statute,  is 
merely  synonymous  with  idiocy. 

The  case  which  the  chancellor  was  considering  did  not  call  for  any  such 
decision,  and  it  is  believed  that  the  remark  quoted  cannot  be  supported 
to  that  extent.  In  the  case  before  him,  the  finding  of  the  jury  was,  to  a 
commission  in  the  nature  of  a  writ  de  lunatico  inquirendo,  that  the  party 
against  whom  it  issued  was  incapable  of  managing  his  affairs,  or  gov- 
erning himself  in  consequence  of  mental  imhrrility  and  weakness. 
And  upon  this  inquisition,  an  application  was  made  to  the  chancellor  for 
the  appointment  of  a  committee  of  his  person  and  estate,  which  he  denied, 

1  See  his  remarks  quoted  by  Verplanck  24  Wend.  85.  Jackson  v.  King,  4  Cowen. 
in  Stewart  v.  Lispenard,  26  Wend.  303.       207.     Clark  v.  Fisher,  1  Paige,  171. 

■  Stewart  v.  Lispenard,  id  225.  Blanch-        ■  2  Pv.  S.  56,  §  1. 
ard  v.  Nestle,  3  Denio,  37.     Osterhout  v.        •  See  the  preceding  cases. 
Shoemaker,  id.  n.     Petric  v.  Slioemaker         6  In  the  matter  of  Morgan.    7  Paige, 

207. 


676  Of  Persons  under  Disability.  [Oh.  8 

and  ordered  a  new  commission  to  issue  in  the  usual  form.  The  chancel- 
lor thought  that  unless  the  jury  could  find,  in  terms,  as  in  the  case  of 
Barker,  before  Chancellor  Kent,  that  the  party  was  of  "unsound  mind, 
and  mentally  incapable  of  governing  himself  or  of  managing  his  affairs," 
the  court  ought  not  to  interfere  with  the  person  or  property  of  the  alleged 
lunatic.  The  question  whether  the  jury  should  be  held  to  find  the  party 
of  unsound  mind,  in  the  language  of  the  statute,  is  quite  a  different  thing 
from  the  question,  whether  the  terms  unsound  mind  and  idiot,  as  used 
in  the  statute,  are  of  the  same  meaning,  or  import  the  same  thing. 

It  is  admitted  that  the  earlier  chancellors  of  England,  in  the  exercise 
of  their  jurisdiction  over  persons  incapable  of  taking  care  of  themselves, 
confined  themselves  to  cases  of  strict  idiocy  and  lunacy.  Accordingly 
Lord  Hardwicke  held  an  inquisition,  which  found  that  the  alleged  lunatic, 
from  weakness  of  mind,  was  incapable  of  governing  himself,  or  his  estate, 
to  be  insufficient.1  In  that  case,  the  chancellor  remarked,  that  he  was 
glad  to  find,  upon  search,  that  except  in  two  or  three  instances,  the  re- 
turn had  been  lunaticus,  or  non  compos  mentis,  or  insana?  moitis  ;  or, 
since  the  proceedings  have  been  in  English,  of  unsound  mind.  He  added 
that  he  desired  they  should  continue  so,  or  otherwise  it  would  introduce 
great  uncertainty.2 

About  the  same  time,  the  same  chancellor  quashed  a  return  which  found 
the  alleged  lunatic  not  of  sufficient  understanding  to  manage  his  own 
affairs  ;  and  another,  in  which  the  jury  found  him  to  be  "  worn  out  with 
age,  and  incapable  of  managing  his  own  affairs."3 

The  reason  for  adhering  to  so  great  strictness  was  doubtless  in  part,  as 
suggested  by  Lord  Hardwicke  in  Barnsley's  case,  the  desire  of  maintain- 
ing the  prerogative  of  the  crown  in  its  just  and  proper  limits,  and  to  pre- 
vent it  from  being  extended  so  as  to  restrain  the  liberty  of  the  subject 
and  his  power  over  his  own  person  and  estate,  further  than  the  law  would 
allow  ;4  and  in  part,  as  suggested  by  a  learned  judge  of  the  supreme  court 
in  the  matter  of  Mason,  already  cited,  that  in  England  the  inquisition  is 
traversable,  as  a  matter  of  right,  and  a  departure  from  the  ancient  forms 
would  lead  to  uncertainty  and  confusion.  Neither  of  these  reasons  apply 
to  our  practice.  The  prerogative  of  the  crown,  to  which  the  people  have 
succeeded,  has  no  existence  in  any  sense  in  which  it  can  work  a  prejudice 


1  Ex  parte  Barnsley,  3  Atk.  168.     Iu  s  Id.  Lord  Donnegal's  case,  2  Ves.  sen. 

the  matter  of  Mason,   1   Barb.   S.  0.  R.  401,  A.  D.  1751.     Bridgraan's  Tndex,  tit. 

130,  per  Harris,  J.  Lunatics,  &c,  275. 

» Id.  4  Id. 


Oh.  8.J  Unsound  Mind.  677 

to  individuals,  and  the  right  of  traverse  does  not  exis!/  at  all ;  and  tho 
award  of  an  issue  rests  in  the  discretion  of  the  court.1 

The  earliest  departure  from  the  strict  technical  rules  insisted  on  by 
Lord  Hardwicke,  relative  to  these  commissions,  occurred  in  the  time  of 
Lord  Eldon,  in  the  commencement  of  the  present  century.  On  that  occa- 
sion his  lordship  laid  down  the  principle,  that  evidence  might  support  a 
commission,  not  of  lunacy,  but  in  the  nature  of  a  writ  de  lanatico  inqui- 
rendo  ;  in  which  it  must  be  remembered,  that  it  is  not  necessary  to  estab- 
lish lunacy,  but  it  is  sufficient  that  the  party  is  incapable  of  managing  his 
own  affairs.2  In  a  subsequent  case,  a  year  later,  a  commission  of  lunacy 
having  been  issued  against  a  lady  under  which  the  jury  found  she  was  not 
a  lunatic,  and  was  sufficient  for  the  government  of  herself,  and  her  estate  ; 
upon  a  petition  that  the  verdict  was  not  supported  by  the  evidence,  and 
that  the  jury  had  proceeded  upon  the  notion  that  this  commission  could 
only  be  applied  to  a  case  of  actual  insanity,  the  chancellor,  after  personal 
examination  and  reading  the  evidence,  from  which  the  nature  of  the  case 
appeared  to  be  imbecility  of  mind,  in  a  great  degree  proceeding  from  epi- 
lepsy, remarked,  that  the  court,  in  Lord  Hardwicke's  time,  did  not  grant  a 
commission  of  lunacy  in  cases  in  which  it  had  since  been  granted.  And 
he  observed,  that  of  late  the  question  has  not  been,  whether  the  party 
is  absolutely  insane  ;  but  the  court  has  thought  itself  authorized  to  issue 
the  commission,  provided  it  is  made  out  that  the  party  is  unable  to  act 
with  any  proper  and  provident  management;  liable  to  be  robbed  by  any 
one  ;  under  that  imbecility  of  mind  not  strictly  insanity,  but  as  to  the 
mischief,  calling  for  as  much  protection  as  actual  insanity.3  The  subject 
underwent  a  further  investigation  by  Lord  Erskine  in  1806.  in  a  case  which 
has  often  been  quoted  with  approbation  in  this  country.4  In  that  case, 
the  first  inquisition  found  that  Cranmer  was  so  far  debilitated  in  his  mind 
as  to  l)e  incapable  of  the  general  management  of  his  affairs,  but  did  not 
find  that  he  was  of  unsound  mind,  and  for  this  reason  the  inquisition 
was  quashed,  and  another  commission  awarded,  under  which  the  jury 
found  that  Cranmer  was  of  unsound  mind,  and  not  sufficient  for  the  gaO- 
ernment  of  himself  and  his  estate.  And  the  chancellor,  in  upholding 
the  latter  finding,  held  that  the  commission  of  lunacy  was  applicable  to 
incapacity,  from  causes  distinct  from  lunacy,  such  as  old  age,  sickness 
and  the  like,  but  that  the  return,  if  not  in  the  words  of  the  commission, 


1  Matter  of  Mason,   1   Barb.  S.  C.  R.         3  Ridgeway  v.  Darwin,  S  Ves.  05. 
436.     Matter  of  Tracy,  1  Paige,  580.     In        *  Ex  parte  Cranmer,  12  Ves.  445.    Mat- 

the  matter  of  Wendell,  1  J.  Ch.  R.  COO.  ter  of  Barker,  2  J.  Ch.  R.  445.  Matter  of 

3  Gibson  v.  Jejes,  G  Ves.  272.  Morgan,  7  Paige,  238. 


678  Op  Persons   under  Disability.  |CIi.  b 

must  have  equivalent  words  ;  and  in  such  cases  the  proper  return  i.%  that 
the  party  is  of  unsound  mind,  so  that  he  is  not  sufficient  for  the  govern 
ment  of  himself  and  his  estate. 

A  similar  question  came  before  Lord  Lyndhurst  in  1827. l  Under  a  com? 
mission  of  lunacy  issued  against  Mr.  Holmes,  the  jury  found,  "  that  the 
Rev.  William  Holmes  is  not  a  lunatic,  but  that  partly  from  paralysis  and 
partly  from  old  age,  his  memory  is  so  much  impaired,  as  to  render  him 
incompetent  to  the  management  of  his  affairs,  and  consequently  of  unsound 
mind,  and  that  he  has  been  so  for  the  term  of  two  years  last  past."  Upon 
this  finding  a  petition  was  presented  for  the  appointment  of  a  committee 
and  a  cross  petition  by  other  parties  to  quash  the  inquisition.  The  ground 
of  the  latter  motion  was,  that  the  verdict  was  no  answer  to  the  inquiry 
which  the  jury  were  directed  to  make.  The  chancellor,  after  reviewing  the 
cases  before  Lord  Eldon  and  Lord  Erskine,  and  approving  of  them,  said, 
"that  the  finding  in  this  case  was  consequential,  the  impaired  memory  of 
the  party  being  the  foundation  of  it.  The  jury  state  one  of  the  effects 
or  consequences  of  unsoundness  of  mind,  and  they  thence  draw  the  con 
elusion  of  unsoundness.  Where  a  jury  state  their  premises  and  draw 
their  conclusion,  and  that  conclusion  does  not  necessarily  follow  from  the 
premises  which  they  state,  we  must  not  take  the  conclusion  as  a  finding 
by  itself." 

Upon  the  ground  that  the  verdict  was  not  in  the  accustomed  form,  and 
that  the  consequences  stated  by  the  jury  did  not  necessarily  follow  from 
the  premises,  his  lordship  quashed  the  inquisition,  and  ordered  a  new  com 
mission  to  issue. 

The  finding  in  this  case  was  argumentative,  and  not  direct  and  posi- 
tive. Had  the  jury  found  Mr.  Holmes  of  unsound  mind,  the  facts  which 
they  also  found,  to  wit,  "  that  partly  from  paralysis  and  partly  from  old 
age,  his  memory  is  so  much  impaired,  as  to  render  him  incompetent  to 
the  management  of  his  affairs,"  would  have  been  ample  to  justify  and 
uphold  the  finding.  Accordingly,  on  the  new  commission  in  that  case, 
the  jury  found  Mr.  Holmes  of  unsound  mind,  in  the  language  of  the  com- 
mission ;  and  we  hear  of  no  further  objection  to  it. 

In  all  cases  the  verdict  should  respond  to  the  questions  which  the  jury 
arc  sworn  to  try.  A  demand  and  refusal  are  sufficient  evidence,  in  an  actioii 
of  trover,  to  warrant  the  jury  in  finding  a  conversion  ;  but  the  court  cannot 
give  judgment  on  a  verdict  which  merely  finds  a  demand  and  refusal.  Sucli 
verdict  is  neither  a  special  or  a  general  verdict ;  it  is  an  imperfect  verdict 

1  In  re  Holmes,  4  Russ.  182. 


Ch.  8.]  Unsound  Mixd.  67S 

It  is  presumed  that  a  special  verdict  is  inadmissible  in  a  commission  »f 
the  nature  we  are  considering. 

The  doctrine  of  Lord  Eldon  and  Lord  Erskine  was  approved  l>y  Chan- 
cellor Kent  as  early  as  1816.1  In  the  case  of  Barker,  upon  a  petition  by 
the  children,  that  the  said  Barker  had  been  for  four  months  past  so  far 
deprived  of  reason  and  understanding,  as  to  be  wholly  unfit  and  unable 
to  manage  his  affairs,  and  praying  that  a  commission  in  the  nature  of  a 
writ  de  lunatico  inquirendo  might  issue,  the  chancellor,  after  an  able 
review  of  the  whole  subject,  awarded  the  commission  to  inquire  whether 
Barker  was  of  unsound  mind,  and  mentally  incapable  of  managing  his 
affairs.  The  jury  found  "  that  for  one  year  preceding  he  was  of  unsound 
mind,  and  mentally  incapable  of  managing  his  affairs."  And  the  chan- 
cellor, upon  that  finding,  appointed  a  committee. 

The  doctrine  of  this  case  was  approved  by  Chancellor  Walworth  m  a 
case  before  him,  already  cited.2  In  that  case  the  commission,  in  the  nature 
of  a  writ  de  lunatico  inquirendo,  directed  the  jury  to  inquire  whether 
Morgan,  who  was  alleged  to  be  of  unsound  mind,  was  a  lunatic  or  idiot, 
or  of  unsound  mind,  and  mentally  incapable  of  governing  himself  and 
managing  his  affairs.  The  jury  found  u  that  he  was  incapable  of  man- 
aging his  affairs  or  governing  himself,  in  consequence  of  mental  imbe- 
cility and  weakness,  and  that  he  had  been  so  incapable  for  two  or  three 
years."  Upon  this  inquisition  an  application  was  made  for  the  appoint- 
ment of  a  committee  of  the  person  and  estate,  but  the  motion  was  denied, 
and  a  new  commission  directed  to  be  issued. 

The  chancellor  held  that  the  jury  must  distinctly  find  that  the  alleged 
lunatic  was  of  unsound  mind,  as  well  as  mentally  incapable  of  governing 
himself  or  of  managing  his  affairs.  It  is  quite  obvious  that  the  finding 
in  that  case  was  imperfect.  It  left  the  court  to  draw  the  conclusion, 
which  the  jury  were  sworn  to  find. 

In  a  case  before  the  vice  chancellor  of  the  first  circuit,  in  1840,  the 
same  doctrine  was  again  held.3  In  that  case  the  jury  found,  that  the 
said  "Mason,  at  the  time  of  the  taking  of  this  inquisition,  is  so  far  weak- 
ened and  impaired  in  the  faculties  of  his  mind,  as  to  be  mentally  inca- 
pable of  the  government  of  himself  and  of  the  management  of  his  goods 
and  chattels,  lands  and  tenements,  business  and  affairs,  and  that  he  had 
been  so  for  four  years."  Upon  a  motion  to  appoint  a  committee,  the  vice 
chancellor  said  that  the  finding  was  not  strictly  correct,  as  it  omitted  to 

1  In  the  matter  of  Barker,  2  J.  Ch.  R.        3  In  the  matter  of  Morgan,  7  Paige 
232 ;  and  see  Matter  of  Wendell,  1  i  J.  GOO.    236. 

s  In  matter  of  Mason,  3  Edw.  380. 


680  Of  Persons  under  Disability  '"Oh.  8 

find  that  Mason  was  of  unsound  mind,  in  the  language  of  the  statute. 
After  showing  what  the  inquisition  should  have  found,  according  to  the 
established  practice,  instead  of  quashing  it  and  ordering  a  new  commis- 
sion, he  directed  a  copy  of  it  to  be  served  with  notice  for  the  appointment 
of  a  committee,  and  that  it  should  be  explained  to  the  alleged  lunatic  ;  and 
if  no  opposition  was  made,  he  said  he  would  appoint  a  committee,  which 
he  accordingly  did.  This  case,  on  the  adoption  of  the  present  constitu- 
tion, was  transferred  to  the  supreme  court,  and  the  decision  of  the  vice 
chancellor  was  called  in  question  in  the  latter  court  in  1847,  by  a  petition 
to  set  aside  the  proceedings,  which  was  denied.  In  delivering  their  judg- 
ment, it  was  intimated  by  the  learned  judge  that  it  might,  perhaps,  have 
been  better  if  the  vice  chancellor  had  required  a  further  commission  ;  and 
he  expressed  his  concurrence  in  opinion  with  Chancellor  Walworth,  in 
Morgan's  case,  already  cited,  that  it  is  not  wise  to  depart  from  the  tech- 
nical form  of  finding  in  the  language  of  the  statute  itself.  Yet,  he  said, 
he  could  not  say,  that  under  the  circumstances,  as  they  appeared  before  the 
vice  chancellor,  it  was  an  indiscreet  exercise  of  his  undoubted  power  ;  that 
it  was  a  question  of  discretion  and  not  of  jurisdiction,  and  if  the  vice 
chancellor  erred,  his  error  could  only  have  been  corrected  by  an  appeal.1 

Some  of  the  New-York  cases  were  before,  and  others  since  the  Revised 
Statutes  were  adopted,  conferring  jurisdiction  on  the  court  to  grant  a  com- 
mission in  cases  of  idiocy,  lunacy  and  unsoundness  of  mind.  Since  the 
English  cases  referred  to  were  decided,  the  British  statutes  on  the  subject 
of  idiocy  and  lunacy  were,  in  the  reign  of  William  the  4th,  consolidated  and 
revised ;  and  they  now,  like  the  New- York  statutes,  recognize  unsound- 
ness of  mind  as  one  of  the  grounds  for  issuing  a  commission,  thus  adopt- 
ing, by  parliamentary  authority,  the  doctrine  of  the  court  of  chancery 
which  had  prevailed  for  more  than  thirty  years  before.2 

From  the  foregoing  view  of  the  cases,  it  seems  that  unsoundness  of 
mind,  short  of  idiocy  or  lunacy,  will  uphold  a  commission  and  justify  the 
court  in  committing  the  person  and  estate  of  a  person,  found  of  unsound 
mind,  and  incapable,  for  that  cause,  of  the  management  of  his  person  and 
estate,  to  the  care  and  custody  of  a  committee.  That  this  state  of  mind 
may  fall  short  of  idiocy  or  lunacy,  appears  from  several  of  the  cases. ' 
The  proper  finding  of  the  jury  in  such  cases  is,  that  the  party  proceeded 
against  is  of  unsound  mind,  an  idiot  or  a  lunatic,  as  the  ease  may  be,  so 

1  In  the  matter  of  Mason,  1  Barb.  S.  0.  s  Jackson  v.  King,  4  Cowen,  217,  per 
U.  436,  442.  Woodworth,  J.,  and  Matter  of  Mason, 

8  See  acts,  1  Will.  4,  ch.  60,  and  ch.  65.    supra,  &c. 


Ch.  8.1  lAKING    THE    INQUISITION.  68l 

that  he  is  not  sufficient  for  the  government  of  himself,  his  lands  and 
tenements.1 

Writers  on  medical  jurisprudence  have  complained  that  the  term 
unsoundness  of  mind,  unlike  idiocy  and  lunacy,  does  not  convey  a  dis- 
tinct and  definite  idea.2  The  fault  here  is  not  in  the  law,  hut  arises 
from  the  nature  of  the  suhject  itself.  No  two  cases  are  perhaps  ever 
alike.  A  man  may  be  mentally  incapable  of  managing  his  affairs,  or  the 
government  of  his  person,  who  is  not  totally  deprived  of  memory  and 
understanding.  If  the  evidence  of  imbecility  of  mind  be  such  that  the 
party  is  incapable  of  the  government  of  his  person  and  his  estate,  the 
jury  can  find  from  such  evidence  the  unsoundness  of  mind,  which  the 
statute  contemplates,  as  the  ground  for  the  interposition  of  the  court. 
Writers  may  disagree  as  to  the  name  by  which  that  state  of  mind  shall 
be  designated.  The  fact  of  its  existence  must  be  found,  in  direct  terms, 
by  the  inquisition,  and  not  by  way  of  argument  or  circumlocution.  The 
jury  must  draw  the  conclusion  from  the  evidence,  and  not  leave  it  to  be 
inferred  by  the  court. 

Having  thus  shown  on  what  grounds  a  commission  may  be  issued  by  the 
court,  in  the  nature  of  a  commission  of  lunacy,  it  may  be  proper  to  add 
some  observations  on  the  subject  of  taking  the  inquisition  and  on  various 
other  topics  connected  with  the  subject ;  and  on  superseding  it,  when  thp 
pirty  against  whom  it  issued  has  recovered  his  senses. 

It  seems  formerly  to  have  been  doubted  whether  a  commission  could 
u>sue  against  a  non-resident.  In  Southcote's  case,3  a  commission  of  lunacy 
■was  ordered  against  a  person  who  was  in  France,  to  be  executed  in  Essex, 
Ti  here  his  mansion  was.  But  the  commission  must  be  executed  in  the 
state,  and  notice  should  be  given  to  the  lunatic,  of  the  time  and  place  of 
its  execution.'4  If  the  lunatic  be  a  non-resident  of  the  state,  the  fact  of 
his  having  property  here  must  be  stated  in  the  petition.  The  lunatic 
should  be  brought  before  the  jury,  who  have  a  right  to  examine  and 
inspect  him,  and  they  should  exercise  this  right  in  every  case  of  doubt. 
And  the  person  who  has  the  custody  of  the  lunatic,  is  bound  to  produce 
him,  or  to  permit  him  to  attend.     The  person  who  disobeys  this  order, 

1  In  matter  of  Mason,  3  Edw.  Ch.  Pw.  s  Ambler  109. 

881.     Shelf.  Law  of  Lunatics,  108,  109.  4  Matter  of  Petit,  2  Paige,  174.     Mat- 

Kidgeway  v.  Darwin,  8  Ves.  G6,  67.    In  ter  of    Ganse,   9    id.    416.     Matter  of 

re  Holmes,  4  Ross.  182.  Fowler,  2  Barb.  Ch.  Pw.  305.     Matter  of 

*  1    Beck's    Med.    Juris.    577.     Guy's  Perkins,   2   J.    Ch.   Pv.    124.     Matter  of 

Med.  Jnr.  288,  289.  Tracy,  1  Paige,  580. 

Eq.  Jdr.  86 


G82  Of  Persons  under  Disab.  ity.  TCh.  8 

■whether  proceeding  from  the  commissioners  or  the  court,  does  so  at  his 
peril.1 

With  regard  to  the  traverse  of  an  inquisition,  it  has  already  been  stated 
that  this  is  not  a  matter  of  course  in  this  state.  In  England  this  is  mat 
ter  of  right.  But  here,  as  the  whole  jurisdiction  is  in  the  court,  and  the 
object  is  to  inform  the  conscience  of  the  court,  and  arrive  at  the  truth, 
the  directing  an  issue  to  be  tried,  under  the  direction  of  the  court,  has 
been  thought  preferable  to  a  traverse  according  to  the  English  method 
The  granting  or  withholding  such  an  issue,  rests  in  the  sound  discretion 
of  the  court.2  The  court  never  grants  leave  to  traverse  the  inquisition, 
when  the  application  is  made  in  the  name  of  the  lunatic,  without  a  pri- 
vate examination  of  the  lunatic  by  the  chancellor,  or  a  report  of  a  master 
who  has  made  the  examination.  But  the  court  will  permit  a  purchaser, 
whose  purchase  is  overreached  by  the  inquisition,  to  traverse  it,  on  stipu- 
lating to  be  bound  by  the  final  decision  thereon.3 

The  committee  of  a  lunatic  appointed  abroad,  has  no  authority  over 
his  property  in  this  state.  Chancellor  Kent  suggested  that  such  con- 
mission,  issued  in  another  state,  might  be  sufficient  to  warrant  the  issuing 
of  a  commission  here.4 

With  respect  to  the  selection  of  the  jurors  to  try  the  question  ot 
sanity,  the  law  confides  this  duty  to  the  sheriff,  and  it  is  irregular  for 
the  commissioners  to  dictate  to  him  in  the  matter.s  The  jurors  should 
be  indifferent  in  relation  to  the  subject  in  controversy,  and  the  commis- 
sioners must  decide  upon  the  validity  of  any  challenge  that  may  be  made 
to  any  of  them.6  After  the  testimony  is  closed,  the  commissioners  should 
submit  the  matter  to  the  jury,  in  the  form  of  a  charge,  stating  the  law 
applicable  to  the  case,  and  recapitulating  the  facts  if  necessary,  but  with- 
out arguments  on  either  side.  Twelve  of  the  jury  must  agree  one  way 
or  the  other,  and  if  twelve  cannot  agree,  the  jury  must  so  report  to  the 
commissioners,  that  their  return  may  be  made  accordingly.  A  majority 
of  the  commissioners  may  decide  any  legal  question  arising  in  the 
proceeding.7 

During  the  deliberations  of  the  jury  it  is  improper  for  the  sheriff  tc 

1  Matter  of  Russell,  1  Barb.  Ch.  R.  38.        '  Id.    Matter  of  Giles,  11  Paige,  243. 
Lord    Wenman's  case,  1  P.  ¥ms.  701.        4  Matter  of  Perkins,  2  J.  Ch.  R.  124. 

Ex  parte  Ludlow,  2  id.  638.  Matter  of  Petit,  2  Paige,  174.    Matter  oi 

a  Matter  of  Wendell,  1  J.  Ch.  R.  600.  Ganse,  9  id.  416. 
Matter  of  Tracy,   1   Paige,  580.     Matter        5  Matter  of  Wager,  6  id.  11. 
of  Russell,  1  Barb.  Ch.  R.  3S.    Matter  of       6  Id. 
Christie,  5  Paige,  242.  7  Matter  of  Arnhout,  1  id.  497. 


Oh.  8.J  Habitual  Drunkards.  685 

be  in  the  room  with  them,  or  to  converse  "with  them  at  all  in  relation  tc 
the  matter  under  consideration.  If  so  directed  by  the  commissioners,  il 
is  his  duty  to  guard  the  jury  room,  and  prevent  tneir  being  intruded 
upon  by  others.  Where  he  violated  his  duty  by  entering  the  room  and 
conversing  with  them  on  the  matter  before  them,  the  inquisition  was  set 
aside  and  a  new  commission  awarded,  with  an  order  that  the  coroner  sum- 
mon the  jury.1 

The  proceedings  on  a  commission  to  inquire  whether  the  party  is  inca- 
pable of  conducting  his  affairs,  in  consequence  of  habitual  drunkenness, 
are  conducted  in  the  same  way  as  an  inquiry  as  to  the  idiocy,  lunacy  or  un- 
soundness of  mind  of  the  party.  The  jurisdiction  of  the  court  of  chancery 
over  the  persons  and  estates  of  habitual  drunkards,  was  first  given  by  the 
act  of  1821.  (L.  p.  99,)  and  it  was  assimilated  to  the  jurisdiction  which 
the  court  already  exercised  over  the  persons  and  estates  of  lunatics.  At 
the  revision  of  the  laws  in  1830  this  provision  was  retained,  with  some 
modifications.  The  overseers  of  the  poor  of  any  city  or  town,  who  shall 
discover  any  person  resident  therein,  to  be  an  habitual  drunkard,  having 
property  to  the  amount  of  two  hundred  and  fifty  dollars,  which  may  be 
endangered  by  means  of  such  drunkenness,  are  required  to  make  applica- 
tion to  the  court  of  chancery,  now  the  supreme  court,  for  the  exercise  of 
its  powers  and  jurisdiction.2  And  if  such  drunkard  have  property  to  an 
amount  less  than  two  hundred  and  fifty  dollars,  the  application  is  to  be 
made  to  the  court  of  common  pleas  of  the  county,  now  the  county  court, 
which  for  this  purpose  is  vested  with  the  powers  of  the  court  of  chancery. 
In  vacation  of  the  common  pleas,  the  application  was  allowed  to  be  made 
to  the  first  judge,  but  this  latter  proceeding  is  now  superseded  by  the 
code,  which  enables  the  county  court  to  take  jurisdiction  of  these  cases, 
whatever  the  amount  of  property  of  the  drunkard,  provided  he  resides  in 
the  same  county  of  the  judge.3 

The  traverse  of  an  inquisition  finding  a  party  an  habitual  drunkard  ia 
not  the  formal  traverse  spoken  of  in  the  English  works,  but  is  an  issue 
directed  by  the  court,  to  inform  its  conscience,  and  is  always  proper  in 
cases  of  doubt,  especially  under  the  act  relative  to  habitual  drunkards.4 

With  regard  to  the  finding,  in  cases  under  the  latter  statute,  the  chan- 
cellor said,  in  the  last  mentioned  case,  that  a  very  erroneous  impression 
appears  to  have  gone  abroad  on  the  subject.     It  is  supposed  by  man)',  h« 


1  Matter  of  Arnliout,  1  J.  Ch.  R.  497.  *  Matter  of  Tracy,  1  Paige,  582.    Mat- 

5  2  R.  S.  52,  §  2.  ter  of  Russell,  1  Barb.  Cli.  R.  38. 

*  Id.  §§  3,  4.     Code  of  Procedure,  §  30, 
»nhd   8. 


C84  Of  Persons  under  Disability.  [Ch.  8 

observed,  that  the  prosecutor,  in  such  cases,  is  hound  to  prove  affirmatively 
that  an  habitual  drunkard  is  incapable  of  managing  hi*  affairs.  On  the 
contrary,  the  fact  that  a  person  is  for  any  considerable  part  of  his  time 
intoxicated,  to  such  a  degree  as  to  deprive  him  of  his  ordinarj'  reasoning 
faculties,  is  prima  facie  evidence,  at  least,  that  he  is  incapable  to  have 
the  control  and  management  of  his  property.1  It  would  seem,  therefore, 
that  evidence  which  establishes  the  fact  that  a  man  is  an  habitual  drunkard, 
will  authorize  the  jury  to  find  the  other  fact  that  he  is,  by  reason  of  such 
habitual  drunkenness,  incapable  of  conducting  his  own  affairs.  In  anal- 
ogy to  the  cases  of  incapacity,  resulting  from  idiocy,  lunacy,  or  unsound- 
ness of  mind,  the  finding  of  both  facts  would  seem  to  be  necessary  to  jus- 
tify the  placing  the  person  charged,  and  his  property,  in  the  hands  of  a 
committee.  A  finding,  in  the  language  of  the  statute,  includes  the  find- 
ing of  both  facts. 

The  control  which  the  court  may,  by  its  committee,  exercise  over  the 
person  of  one  who  is  found  incapable  of  conducting  his  own  affairs,  in 
consequence  of  drunkenness,  is  the  same  which  it  may  exercise  over  an 
infant,  an  idiot  or  a  lunatic.2  The  guardian  or  committee  is  alone  to  de- 
cide, subject  however  to  the  superintending  control  of  the  court,  as  to  the 
proper  place  in  which  the  infant,  non  compos  or  habitual  drunkard  shall 
reside ;  as  he  is  liable  for  the  consequences  of  a  neglect  to  take  proper 
care  of  the  person  committed  to  his  care.  And  it  is  the  duty  of  the  court 
to  lend  its  aid  to  protect  him  in  the  proper  exercise  of  that  right ;  and 
to  give  him  directions  on  the  subject  when  necessary.3 

In  accordance  with  these  principles  it  has  been  held,  that  if  the  com- 
mittee find  that  any  person  is  furnishing  the  habitual  drunkard  with  the 
means  of  intoxication,  even  gratuitously,  he  should  apply  to  the  court  for 
an  order  restraining  all  persons  from  furnishing  him  with  ardent  spirits, 
or  with  the  means  of  obtaining  liquor,  upon  pain  of  contempt.4 

With  respect  to  the  person  to  whom  the  guardianship  of  the  person  or 
estate  should  be  committed,  general  fitness  is  to  be  regarded  rather  than 
the  selection  of  one  who  could  derive  no  benefit  from  the  death  of  the 
party.  In  the  case  of  the  lunacy  of  the  mother,  Chancellor  Kent  com- 
mitted the  guardianship  of  the  person  to  the  daughter  ;  and  observed  that 
the  presumption,  if  one  must  be  indulged,  would  be  in  favor  of  kinder 
treatment  and  more  patient  fortitude  from  her  than  from  the  collateral 


1  Matter  of  Tracy,  1  Paige,  582,  583.  12  Ves.  455.     Lord  "Wenman's  case,  1  P. 

*  In  the  matter  of  Lynch,  5  id.  122.  Wrns.  702. 

*  Id.     Hall  v.  Hall,  3  Atk.  721.     Free-  4  In  the  matter  of  Hiller,  3  Paige  202. 
CRu's  case,  1  Str.  168.     Cranmer's  case,  Matter  :f  Hong,  7  id.  312. 


Ch.  8. |  Support  of  Lunatics,  &o.  iWh 

Kindred."  Nor  is  it  a  matter  of  course  to  commit  the  guardianship  of 
the  estate  of  a  lunatic  to  those  who  are  presumptively  entitled  to  it  upon 
his  death,  as  his  heirs  or  next  of  kin.  But  they  will  be  appointed,  where 
it  satisfactorily  appears  to  the  court  that  they  are  the  persons  who  are 
the  most  likely  to  protect  his  property  from  loss.2 

In  most  other  respects  the  proceedings  against  a  person  as  an  habitual 
drunkard  are  the  same  as  those  against  idiots,  lunatics,  and  persons  of 
unsound  mind. 

With  respect  to  the  management  and  disposition  of  the  property  of 
the  lunatic,  his  interest  is  more  to  be  regarded  than  the  contingent  in- 
terest of  those  who  may  be  entitled  to  the  succession  ;  and  the  court,  if 
it  be  for  the  interest  of  the  lunatic,  will  direct  timber  on  the  land  of  the 
lunatic  to  be  sold.3  On  the  like  principle,  Chancellor  Kent  held,  under 
the  former  statute,  that  the  real  estate  of  the  lunatic  might  be  converted 
into  personal,  or  personal  into  real,  for  the  benefit  of  the  lunatic.4  But 
since  the  Revised  Statutes,  the  court  cannot  direct  a  sale  of  the  real 
estate  of  a  lunatic,  except  when  it  is  necessary  for  the  maintenance  of 
himself  or  his  family,  or  the  education  of  his  children,  or  the  payment 
of  his  debts  ;  nor  for  these  purposes,  if  the  personal  estate  is  sufficient.5 
But  the  court  may  authorize  the  committee  to  apply  the  surplus  income  to 
the  improvement  of  the  unproductive  real  estate ;  and  to  apply  a  reasonable 
portion  of  the  capital  of  the  personal  estate  in  building  upon  vacant  lots, 
which  will  thereby  be  rendered  productive.6 

During  the  lifetime  of  the  lunatic  the  next  of  kin  have  no  interest  in 
his  estate.  But  as  the  lunatic,  if  of  sufficient  ability,  is  bound  to  main- 
tain his  family,  and  as  the  court  is  bound  to  see  that  his  property  is  fairly 
devoted  to  that  purpose,  applications  are  not  unfrequently  made  to  the 
court  for  an  order  on  the  committee  to  make  allowances  in  favor  of  those 
whom  he  is  bound  to  provide  for,  and  for  other  relatives  of  the  lunatic 
towards  whom  he  is  under  no  such  obligation.  Lord  Eldon,  on  one  occa- 
sion, gave  the  following  explanation  of  the  course  of  the  court  on  these 
applications  :  ':  When  the  court  is  called  upon  to  make  an  allowance,"  said 
his  lordship,7  "  it  has  nothing  to  consider  but  the  situation  of  the  lunatic 
himself,  always  looking  to  the  probability  of  his  recovery,  and  mvr 
regarding  the  interest  of  the  next  of  kin.  With  this  view  only,  in  case 
where  the  estate  is  considerable,  and  the  persons  who  will  be  entitled  to 


1  Matter  of  Livingston  1  J.  Ch.  R.436.        ■  2  R.  S.  53,  §  11.     Matter  of  Tetit,  2 

5  Matter  of  Taylor,  9  Paige,  611.  Paige,  596. 

»  Matter  Salisbury,  3  J.  Ch.  R.  347.  6  Matter  of  Livingston,  9  id.  440. 

4  Id.    lVeni.  48:J.     Ambler,  419.  T  Ex  parte  Whitbread,  2  Men  r.  102. 


<586  Of  Persons  under  Disability.  [Ch.  8 

it  hereafter,  are  otherwise  provided  for,  the  court,  looking  at  what  it  is 
likely  the  lunatic  himself  would  do,  if  he  were  in  a  capacity  to  act,  will 
make  some  provision  out  of  the  estate  for  those  persons.  So,  where  ? 
large  property  devolves  upon  an  elder  son,  who  is  a  lunatic,  as  heir  at 
law,  and  his  brothers  and  sisters  are  slenderly,  or  not  at  all  provided 
for,  the  court  will  make  an  allowance  to  the  latter  for  the  sake  of  the 
former,  upon  the  principle  that  it  would  naturally  be  more  agreeable  to 
the  lunatic,  and  more  for  his  advantage,  that  they  should  receive  an  edu- 
cation, and  maintenance  suitable  to  his  condition,  than  that  they  should 
be  sent  into  the  world  to  disgrace  him  as  beggars.  So  also,  where  a 
father  of  a  family  becomes  a  lunatic,  the  court  does  not  look  at  the  mere 
legal  demand  which  his  wife  and  children  may  have  upon  him,  and  which 
amount,  perhaps,  to  no  more  than  may  keep  them  from  being  a  burden 
on  the  parish  ;  but  considering  what  the  lunatic  would  probably  do,  and 
what  it  would  be  beneficial  to  him  should  be  done,  makes  an  allowance 
for  them  proportioned  to  his  circumstances.  But  the  court  does  not  do 
this,  because,  they  would  be  entitled,  if  the  lunatic  were  to  die  tomorrow, 
to  the  entire  distribution  of  his  estate  ;  nor  necessarily  to  the  extent  ot 
giving  them  the  whole  surplus  beyond  the  allowance  made  for  the  per- 
sonal use  of  the  lunatic.  The  court  does  nothing  wantonly  or  unneces- 
sarily to  alter  his  property  ;  but,  on  the  contrary,  takes  care  for  his  sake, 
that  if  he  recovers,  he  shall  find  his  estate  as  nearly  as  possible  in  the 
same  condition  as  he  left  it,  applying  the  property,  in  the  mean  time,  in 
such  manner  as  the  court  thinks  it  would  have  been  wise  and  prudent  in 
the  lunatic  himself  to  apply  it  in  case  he  had  been  capable."  Upon  these 
principles  the  court  does  not  confine  the  allowance  to  such  relations  as 
the  lunatic  would  be  legally  bound  to  provide  for,  but  extends  it  to 
brothers  and  other  collateral  kindred,  reserving  to  its  own  discretion  the 
amount  and  proportions  of  such  allowance. 

The  practice  of  making  allowance  out  of  the  estate  of  the  lunatic,  in 
fav  r  of  persons,  when  the  lunatic  was  not  legally  bound  to  maintain 
them,  seems  to  have  originated  with  Lord  Eldon,  but  has  been  followed 
in  several  cases  by  his  successors,  although  with  some  reluctance.1  These 
iplcs  have  been  fully  approved  and  acted  upon  by  the  court  of 
ibaneery  of  the  state,  in  many  cases.2  The  practice  of  Chancellor  Wal- 
worth, where  the  estate  of  the  lunatic  was  large  and  the  income  much 
more  than  sufficient  for  his  support,  and  that  of  all  those  who  had  a  legal 

1  In  re  Blair,  1  Myl.  &  Cr.  300.     Matter    Paige,   259.     In  the  matter  of  Heeny, 
of  Earl  of  Carysfort,  Craig  &  Phil.  76.        2  Barb.  Ch.  R.  326. 
1  In  the    matter  of   "Willoughbv,    11 


Ch.  8.]  Support  of  Lunatics,  &c.  G87 

claim  upon  him  for  support  and  maintenance,  and  where  there  was  little 
or  no  hope  that  the  lunatic  would  recover,  was  to  make  an  allowance  in 
favor  of  other  near  relatives  of  the  lunatic  who  were  in  need  of  assistance. 
In  such  case  it  was  the  practice  to  require  the  adult  children,  who  were 
competent  to  support  themselves,  to  give  a  stipulation  that  the  amounts 
advanced  to  them  respectively  should  be  brought  into  notch  potch.  upon 
the  death  of  the  lunatic;  if  any  part  of  his  personal  estate  should  come 
to  them  under  the  statute  of  distributions.  But  this  latter  principle  was 
not  extended  to  children  of  the  lunatic  who  were  sickly  or  decripid,  so  as 
to  give  them  a  special  claim  upon  the  estate  of  the  lunatic  for  support. 

Nor  will  the  court  confine  its  jurisdiction  to  allowances  for  the  kindred 
alone  of  the  lunatic.  It  has  power,  out  of  the  surplus  income  of  the  estate 
of  a  lunatic,  to  provide  for  the  support  of  persons  not  his  next  of  kin,  and 
whom  the  lunatic  is  under  no  legal  obligation  to  support,  when  it  satis- 
factorily appears  to  the  court  that  the  lunatic  himself  would  have  pro- 
vided for  the  support  of  such  persons,  had  he  been  of  sound  mind.  And 
the  court  may  also  make  an  allowance,  out  of  the  income  of  a  lunatic's 
estate,  for  the  education  of  persons  whom  he  had  adopted  as  children, 
while  he  was  in  a  sound  state  of  mind.  In  like  manner  the  committee 
of  a  lunatic  may  be  authorized  to  provide  for  the  keeping  up  of  the  luna- 
tic's family  establishment,  with  the  same  number  of  domestics  as  had 
been  customary  previous  to  the  lunacy,  and  to  expend  for  that  purpose, 
annually,  an  amount  not  exceeding  that  which  had  been  annually  expended 
by  the  lunatic  himself  before  his  lunacy.  And  the  court  may  also  author- 
ise the  committee  to  pay  for  the  support  of  the  institutions  of  religion, 
ill  the  church  where  the  lunatic  and  his  family  have  been  accustomed  to 
worship,  such  sums  from  time  to  time  as  the  lunatic  may  desire  him  to 
pay  for  that  purpose,  not  exceeding  the  amount  which  he  had  been  in  the 
habit  of  paying  annually,  before  his  faculties  became  impaired.  And  the 
court  may  also  authorize  the  committee  to  place  at  the  disposal  of  the 
lunatic,  so  long  as  he  is  capable  of  judging  of  the  claims  of  applicants, 
small  sums  of  money  for  purposes  of  charity.1 

But  the  committee  will  not  be  allowed  personally  to  expend  any  part 
of  the  estate  of  the  lunatic  for  general  charity,  or  objects  of  benevolence 
or  of  piety,  for  which  the  lunatic  himself  had  not  been  in  the  habit  of 
contributing  specifically  and  regularly  while  he  was  competent  to  manage 
his  own  affairs.2 


1  In  the  matter  of  ITeeny,  2  Barb.  Ch.        ■  Id. 
R26. 


688  Of  Persons  under  Disability.  [Ch   b. 

An  inquisition  may  be  set  aside  by  the  court  for  irregularity,  or  it  may 
be  quashed  if  the  facts  will  not  justify  the  finding  of  the  jury,  or  it  may 
be  suspended,  in  'whole  or  in  part,  or  superseded,  on  the  restoration  of  the 
lunatic  to  a  sound  mind. 

If,  for  example,  the  commissioners  dictate  to  the  sheriff  whom  he  shall 
select  as  jurors  ;'  if  the  commission  be  executed  -without  notice  to  the 
lunatic ;-  if  the  sheriff,  having  charge  of  the  jury,  improper^  enter  the 
room  and  converse  with  them  on  the  matter  during  their  deliberations  :3 
if  the  jury  be  denied,  improperly,  the  right  of  seeing  and  conversing  with 
the  lunatic  ;4  for  these,  and  the  like  causes,  the  inquisition  will  be  set 
aside,  and  a  new  commission  issued. 

If  the  inquisition  does  not  conform  to  the  requirements  of  the  statute, 
by  failing  to  find  the  party  an  idiot,  or  a  lunatic,  or  a  person  of  unsound 
mind,  as  the  case  may  be,  but  is  argumentative  or  in  other  respects 
deficient,  the  proper  course  is  to  quash  it  and  to  order  a  new  commission 
to  issue.5 

So  an  inquisition  having  found  that  a  person  was  a  lunatic,  and  had 
been  in  the  same  state  of  lunacy  from  the  time  of  her  birth,  the  inquisitk  n 
was  quashed,  and  a  new  commission  issued.6  Such  a  finding  is  a  contn.- 
diction  in  terms.  The  finding  should  have  been  that  she  was  of  unsound 
mind. 

In  a  very  clear  case  of  mistake,  or  undue  prejudice  of  the  jury,  the 
court  may  discharge  the  inquisition  of  lunacy  upon  the  mere  examination 
of  the  supposed  lunatic,  and  an  examination  of  the  evidence  produced 
before  the  jury,  without  subjecting  him  to  the  expense  of  an  issue  or 
traverse  ;  but  this  will  not  be  done  upon  ex  parte  affidavits,  where  no 
excuse  is  given  for  not  having  produced  the  affiants  before  the  jury  as 
witnesses.7  The  same  rule  applies  where  the  jury  err  in  finding  that  the 
party  is  not  of  unsound  mind,  and  where  there  is  no  doubt,  from  the  evi- 
dence, that  they  should  have  found  the  other  way.5  In  the  case  last 
mentioned  the  finding  was  against  the  unanimous  opinion  of  the  commis- 
sioners, and  was  unsupported  by  the  evidence  ;  and  the  chancellor  directed 
a  new  commission  to  the  same  commissioners. 

If,  after  a  party  has  been  found  of  unsound  mind  by  an  inquisition, 


1  Matter  of  Wager,  6  Paige,  11.  "In  the  matter  of  Bruges,  1  Myl.  &  Cr 

5  Matter  of  Tracy,  1  id.  581.  278. 

s  Matter  of  Arnhout,  1  id.  497.  7  In  matter  of  Russell,  1  Barb.  Ch.  R. 

4  Matter  of  Russell,  1  Barb.  Ch.  R.  30.  38. 

•  Matter  of  Morgan,    7    Paige,    236.  8  Matter  of  Lasher,  2  id.  97.     Donne 

Matter  of  Mason,  1  Barb.  S.  C.  R.  436.  ghal's  case,  2  Ves.  sen.  408. 


Oh.  8.]  Discharging  Commission.  GSO 

the  jury,  on  an  issue  ordered  by  the  court  for  that  purpose,  find  in  favor 
of  the  mental  capacity  of  the  party,  the  commission  must  be  discharged, 
and  the  alleged  lunatic  restored  to  the  full  control  of  his  property.1 

With  respect  to  an  application  in  behalf  of  the  lunatic  to  supersede 
the  commission  on  the  ground  of  his  complete  recovery,  the  practice 
seems  to  be  for  the  lunatic  himself  to  attend  in  person  upon  the  hearing 
of  the  petition,  that  he  may  be  inspected  by  the  court.  Notice  of  the 
motion  must  be  given  to  the  committee,  together  with  copies  of  '',<■(■ 
petition  and  affidavits  on  which  it  is  founded.  The  court  may  itself  deter- 
mine the  question  from  inspection  and  the  affidavits,  or  it  may  refer  the 
matter  to  a  referee  to  take  proof  of  the  facts,  with  his  opinion  thereon, 
or  otherwise,  and  on  the  coming  in  of  his  report,  the  court  decides  the 
matter.2  Or  it  may  direct  an  issue  to  be  made  up  and  tried  by  a  jury.3 
In  the  last  mentioned  case,  on  the  petition  of  a  lunatic  for  the  discharge 
of  his  committee,  on  the  ground  of  returned  sanity,  Chancellor  Kent  held 
that  it  was  in  the  sound  discretion  of  the  court,  to  allow  him  to  traverse 
the  inquisition,  or  to  try  the  question  on-  a  feigned  issue ;  and  where  the 
lunacy  was  satisfactorily  established  in  the  first  instance,  and  the  opinion 
of  the  court,  after  repeated  applications  of  the  party  for  a  discharge  of 
his  committee,  remained  unchanged,  the  trial  of  the  question  was  directed 
to  be  at  the  expense  of  the  lunatic  or  his  friends,  and  not  at  the  charge 
of  his  estate,  which  consisted  of  personal  property  only,  acquired  by  the 
industry  and  skill  of  the  wife,  and  barely  sufficient  for  the  maintenance 
of  herself  and  children,  and  of  her  husband. 

When  the  proceedings  have  been  had  against  the  party,  and  he  has 
been  found  incapable  of  managing  his  affairs  by  reason  of  habitual 
drunkenness,  the  court  will  not  discharge  the  committee  and  restore  t^i 
property  to  the  party  upon  proof  of  the  fact  that  he  is  competent  to 
manage  his  affairs,  without  evidence  of  a  permanent  reformation.  As  a 
general  rule,  the  court  of  chancery,  in  the  time  of  Chancellor  Walworth, 
required  as  evidence  of  a  permanent  reformation,  satisfactory  proof  that 
the  habitual  drunkard  had  refrained  from  the  use  of  intoxicating  liquors 
for  at  least  one  year  immediately  preceding  the  application  for  the  resto- 
ration of  his  property.4 

In  order  to  supersede  a  commission,  Lord  Thurlow  was  of  opinion, 
that  when  lunacy  was  once  established  by  clear  evidence,  the  party  ought 


1  Matter  of  Giles,  11  Paige,  638,  Ferrars,  id.  332.     2  Collinson  on  Lunacy. 

2  Matter  of  Hanks,  3  J.  Ch.  R.  567.    Ex    7-46. 

parte  Bumpton,  Moseley,  78.     Ex  parte        3  Matter  of  McLean,  fi  J   Ch.  R.  4-40. 

4  Matter  of  Iloag,  7  Pai-e,  312. 
Eq.  Jcr  87 


690  Of  Persons  under  Disability.  [Ch.  b 

to  be  restored  to  as  perfect  a  state  of  mind  as  he  had  before ;  and  that 
that  should  be  proved  by  evidence  as  clear  and  satisfactory ;'  but  Lord 
Eldon  did  not  concur  in  that  proposition.  Something  less  than  the  same 
perfection  of  mind,  he  thought,  would  be  sufficient.2 

But  as  diseases  of  the  mind  are  extremely  insidious  in  their  character, 
it  is  not  unusual,  in  this  class  of  cases,  as  well  as  in  those  where  the  pro- 
ceedings are  founded  on  the  habitual  drunkenness  of  the  party,  instead 
of  superseding  the  commission  in  the  first  instance,  to  suspend  its  opera- 
tion, in  whole  or  in  part,  either  indefinitely  or  for  a  limited  time.3 

It  has  been  made  a  question  whether  a  commission  can  be  superseded 
as  to  the  person  and  retained  as  to  the  estate.  In  this  state  it  was  held 
by  Hand,  J.,  that  this  could  not  be  done ;  and  Lord  Cottenham,  on  one 
occasion,  decided  the  same  question  in  the  same  way.4  But  the  commis- 
sion may  be  suspended  as  to  the  person  and  retained  in  force  as  to  the 
estate.5  And  it  may  be  suspended  in  part  as  to  the  estate,  so  as  to 
authorize  the  lunatic  to  make  a  will  disposing  of  his  property,  if  on  ex- 
amination of  the  lunatic  and  the  evidence,  the  court  is  satisfied  that  he 
has  so  far  recovered  his  mind  as  to  have  a  testamentary  capacity.6  A 
committee  of  the  person  may  exist,  without  a  committee  of  the  estate, 
instead  of  which  the  property  may  be  put  in  the  hands  of  a  receiver.7 
In  Burr's  case,  already  referred  to,  the  chancellor,  and  subsequently  the 
supreme  court,  so  far  suspended  the  commission,  both  of  the  person  and 
estate,  as  to  allow  the  lunatic,  from  time  to  time,  to  receive  portions  of 
the  income  of  his  estate,  and  finally  the  whole  income,  and  to  invest  or 
expend  it  in  such  manner  as  he  should  judge  best,  leaving  the  committee 
f.f  the  estate  in  other  respects  in  the  full  control  of  the  estate.8  As  was 
said  by  Lord  Loughborough  on  one  occasion,  the  chancellor  is  to  admin- 
ister the  estate  of  a  lunatic  tanquam  bonus  paterfamilias ;9  and  he  might 
have  added,  that  he  should  treat  his  person  in  the  same  way. 

The  court  may  appoint  the  same  person  committee  of  the  person  and  of 
the  estate,  or,  as  is  usual  when  the  estate  is  large,  have  a  separate  committee 
for  each.     And  although  the  committee  of  the  estate  cannot  be  allowed 


1  Att'y  Gen.  r.  Parnther,  3  Bro.  C.  C.        6  In  the  matter  of  Burr,  before  Harris, 

444.     2  Mad.  Ch.  R.  580.  J.  at  Albany,  Sp.  T.  1854. 

■  Ex  parte  Holyland,  11  Ves.  10.  Mat-        6  Matter  of  Burr,  2  Barb.  Ch.  R.  208. 
ter  of  Hanks,  3  J.  Ch.  R.  568.  7  Ex  parte  Warren,  10  Ves.  622.    Mat- 

3  In  the  matter  of  Burr,  2  Barb.  Ch.  R.  ter  of  Russell,  1  Barb.  Ch.  R.  42. 
210.     Ex  parte  Earl  Ferrars,  Mosel.  332.        8  Matter  of  Burr,  2  Barb.  Ch.  R.  208. 

Bac.  Abr.  tit.  Idiots,  p.  10.  MS.  before  TVillard,  J.  in  Saratoga,  Sp.  T. 

'  Matter  of  Burr,  17  Barb.  9.     Matter        9  Oxenden  v.  L<  rd  Compton,  2  Yes.  jr 

of  Gordon,  2  Phillips,  242.  73 


Ch.  8.]  Creditor's  Remedy.  G01 

For  his  services,  as  sucli  committee,  any  greater  or  different  compensation 
than  that  which  is  fixed  by  the  Revised  Statutes  as  the  allowance  by  way 
of  commission  to  executors,  administrators  and  guardians,  yet  where  the 
interest  of  the  estate  requires  it,  an  agent  or  clerk  may  be  employed  un- 
der the  direction  of  the  court,  upon  the  application  of  a  committee,  at  a 
reasonable  salary  to  be  fixed  by  the  court.1  In  the  matter  of  Burr, 
already  referred  to,  the  committee  of  the  estate  was  allowed  a  clerk  at  an 
annual  salary,  and  a  salary  was  also  paid  to  the  committee  of  the  person. 
The  necessity  for  such  allowance  will  depend  on  the  amount  of  property 
to  be  managed,  and  various  other  circumstances.  In  Buri*'s  case,  the 
amount  of  property  was  about  $250,000,  and  the  lunatic,  in  addition  to 
the  committee  of  the  person,  was  furnished  with  a  companion  who  attend- 
ed him  on  his  journeys  and  elsewhere,  and  to  whom  a  salary  was  also  paicL 

With  repect  to  the  effect  of  the  inquisition  upon  the  lunatic  and  upon 
the  remedies  of  his  creditors,  it  is  settled  that  all  gifts  and  contracts  made 
by  an  idiot,  lunatic  or  habitual  drunkard,  after  the  actual  finding  of  the 
inquisition,  are  utterly  void.2  In  like  manner,  contracts  made  by  him 
before  the  finding  of  the  inquisition,  which  are  overreached  by  the  retro- 
spective finding  of  the  jury,  are  presumptively  void.3 

The  proper  way  for  a  creditor  seeking  to  enforce  his  claim  against  a 
lunatic,  is  by  bill  in  equity  against  the  committee.'1  But  the  lunatic  may 
be  made  a  party  to  the  bill,  so  as  to  make  the  proceedings  binding  against 
h:m,  if  he  should  be  restored  to  the  control  of  his  estate.5 

If  the  remedy  be  at  law,  the  permission  of  the  court  must  be  obtained 
before  commencing  an  action  to  enforce  it.  It  is  a  contempt  of  the  court 
ft  •  commence  such  action  without  leave,  after  notice  of  the  inquisition. 
1  he  court  will  stay  the  proceedings  in  such  action  if  it  is  brought  without 
ils  permission.6  But  it  seems  the  judgment  obtained  in  an  action  brought 
against  the  lunatic  without  leave,  is  not  void  or  even  erroneous.7  It  can- 
not be  enforced  against  the  estate  of  the  lunatic  in  the  hands  of  the  com- 
mittee without  leave  of  the  court.8 

In  this  state,  bystatute,  receivers  and  committees  of  lunatics  and  habit- 
ual drunkards,  appointed  by  any  order  or  decree  of  the  court,  are  per- 
mitted to  sue  in  their  own  name,  for  any  debt,  claim  or  demand  transferred 


1  Matter  of  Livingston,  9  Paige,  440.  Matter  of  ITiller,  3  id.  199.    Matter  of 

1  L'Amoreax  v.  Crosby,  2  Paige,  422.  Hopper,  5  id.  489. 

1  Id.  •  Sternbergh  v.  Schoolcraft,  2  Barb.  S. 

4  Brasher's  Ex'rs  v.  Van  Cortland,  2  J.  C.  R.  153.     Robertson  v.  Lain,  19  Weud. 

Ch.  R.  242.  650. 

1  Beach  v.  Bradley,  8  Paige,  146.  •  Matter  of  Hopper,  5  Paige.  489. 

•  L'Amoreux  v.  Crosby,  2  Paige,  422. 


692  Op  Persons  under  Disabilitv.  [Ch.  8 

to  them,  or  to  the  possession  and  control  of  which  they  are  entitled  as  such 
receiver  or  committee  ;  and  when  ordered  or  authorized  to  sell  such  de- 
mands, the  purchaser  thereof  may  sue  and  recover  therefor  in  his  own 
name,  but  is  required  to  give  such  security  for  costs  to  the  defendant  as 
the  court  in  which  the  action  is  brought  may  direct.1  But  this  statute 
does  not  affect  the  real  estate  of  the  lunatic.  And  the  committee  cannot 
have  ejectment  in  his  name  for  the  lunatic's  land,  but  it  must  be  brought 
in  the  name  of  the  lunatic.2  And  the  lunatic  is  a  necessary  party  in  an 
action  for  the  partition  of  his  land.3  The  same  rule  applied  both  at  law 
and  in  equity,  before  the  statute  of  1845,  when  the  action  was  brought 
for  the  recovery  of  personal  property  belonging  to  the  lunatic.4  But  the 
lunatic  was  not  a  necessary  party  to  a  bill  brought  by  his  committee  to 
avoid  his  acts,  though  he  might  be  united  in  the  action.5 

Idiots  and  lunatics  are  liable  for  their  personal  torts,  for  compensatory 
damages.  And  where  an  idiot  destroyed  a  building  belonging  to  himself 
and  others,  as  tenants  in  common,  the  court  having  no  power  to  sell  the 
land  to  pay  the  damages,  ordered  an  equitable  partition  of  it,  allowing 
for  the  damages.6 

Where  a  bill  is  filed  affecting  the  estate  of  a  lunatic,  if  his  committee 
has  a  personal  interest  in  the  controversy  which  conflicts  with  that  of  the 
lunatic,  the  latter  should  be  made  a  party  and  a  guardian  appointed 
for  him.7 

For  other  matters  on  this  subject,  and  of  the  doctrine  of  the  court  in 
relieving  against  contracts  obtained  from  persons  of  imbecile  minds,  though 
not  under  a  commission,  reference  may  be  had  to  the  chapter  on  frauds 
where  it  is  considered  in  several  of  its  aspects. 

1  L.  of  1845,  ch.  112,  §  2.  4  Lane  v.  Schermerhorn,   1   Hill,   97 

a  Petrie  v.  Schoonraaker,  24  "Wend.  85.    Gorham  v.  Gorham,  supra. 

Lane  v.  Schermerhorn,  1  Hill,  97.  5  Id.  Ortley  v.  Messere,  7  J.  Ch.  R.  139. 

•  Gorham  v.  Gorham,  3  Barb.  Ch.  R.        e  Matter  of  Hiller,  3  Paige,  199.  Kroom 

24.  v.  Schoonmaker,  3  Barb.  S.  C.  R.  647 

T  Teal  v.  Woodworth,  3  Paige,  470. 


CHAPTER  IX. 

CP  THE  JURISDICTION  IN  EQUITY  IN  CASES  OF  DOWER  AND  PARTITION. 

COURTS  of  equity  have  exercised,  from  an  early  day,  concurrent 
jurisdiction  with  courts  of  law,  in  Bower  and  Partition.1  At  what 
time  this  jurisdiction  was  first  asserted  it  is  perhaps  impossible,  at  this 
day,  accurately  to  determine  ;  nor  is  it  a  matter  of  any  importance. 
There  are  many  cases  where  the  remedy  at  law,  both  in  dower  and  parti- 
tion, was  imperfect.  There  were  other  case?,  where  the  aid  of  courts  of 
equity  was  necessary  for  the  purpose  of  discovery ;  and  in  both  actions, 
equity  afforded  a  safer,  better,  more  certain  and  expeditious  remedy,  than 
could  be  obtained  by  the  dilatory  and  cumbersome  proceedings  of  the 
actions  at  common  law. 

Questions  in  relation  to  dower  often  arise  in  actions  of  partition,  and 
courts  of  equity  can  settle  and  adjust,  in  one  action,  the  rights  of  all  par- 
ties to  the  property  which  is  to  be  divided.  In  many  cases  there  is  an 
indispensable  necessity  for  the  exercise  of  this  jurisdiction  in  dower  and 
partition,2  and  without  it  the  remedy  would  be  wholly  ineffectual. 

For  these  reasons  Ave  shall  treat  of  both  subjects  in  one  chapter,  though 
under  distinct  heads,  where  they  are  not  necessarily  blended. 


SECTION  ]. 


OF    DOWER. 


In  this  state  it  is  enacted  that  a  widow  shall  be  endowed  of  the  third 
part  of  all  the  lands,  whereof  her  husband  was  seised  of  an  estate  of  in- 
heritance, at  any  time  during  the  marriage.3     This  is  precisely  the  dower 

1 1  Mad.  Oh.  Pr.  107.  *  1  R.  S.  740,  §  1. 

*  Hartshorn  v.  Hartshorn,   1   Green's 
Ch.  R.  349. 


694  Dower.  fCh.  9 

at  common  law  spoken  of  in  the  books.1  The  other  species  of  dower 
which  occasionally  existed  in  England,  never  formed  any  part  of  our 
jurisprudence. 

The  common  law  remedy  to  recover  dower,  -formerly  existing  in  this 
state,  was  the  writ  of  dower  nnde  nihil  habet,  and  lay  only  against  the 
tenant  of  the  freehold.2  It  was  a  dilatory,  expensive  and  complicated 
remedy.3  It  was  one  of  the  real  actions  known  to  the  law.  in  distinction 
from  actions  personal  and  mixed. 

At  the  revision  of  the  laws  of  this  state  in  18S0,  all  writs  of  right, 
writs  of  dower,  writs  of  entry  and  assize,  &c.  and  all  other  real  actions 
known  to  the  common  law,  not  enumerated ;  and  all  writs  and  other  pro- 
cess formerly  used  in  real  actions  and  not  specially  retained,  were  abol- 
ished.4 The  only  ancient  action  retained  was  nuisance,  and  that  only  in 
a  modified  form.5 

As  a  substitute  for  the  real  actions  originally  provided  to  recover  real 
estate,  and  for  the  action  of  dower,  ejectment  was  retained,  freed  from  the 
fictions  which  encumbered  it  under  our  former  practice,  and  greatly  im- 
proved in  other  respects.  Ejectment,  after  the  revision  of  the  statutes 
in  1830,  became  the  ordinary  common  law  action  for  the  recovery  of 
dower ;  and  hence  all  the  former  complicated  forms  of  pleading  in  the  action 
were  abolished.  In  one  case  since  the  revision,  it  was  doubted  whether 
ejectment  for  dower  would  lie  against  any  other  person  than  the  tenant 
of  the  freehold.6  On  a  more  full  consideration  and  discussion  of  the  sub- 
ject at  a  later  day,  the  court  held  that  ejectment  for  dower,  like  that  ac- 
tion founded  upon  any  other  title,  would  lie,  and  indeed  must  be  brought 
against  the  person  in  possession,  if  there  be  one,  whether  he  be  seised  of 
a  freehold,  or  possessed  of  a  term  for  years  or  a  less  estate.  By  giving 
ejectment  it  was  thought  that  the  statute  gives  all  its  practical  incidents  ; 
and  it  is  of  the  nature  of  the  action  that  it  will  not  lie  against  the  tenant 
of  the  freehold  unless  he  be  in  the  actual  possession.7  If  the  premises 
are  unoccupied,  the  action  must  be  brought  against  some  person  exercis- 
ing acts  of  ownership  on  the  premises  claimed,  or  claiming  title  thereto, 
or  some  interest  therein,  at  the  commencement  of  the  suit.s 

In  addition  to  the  action  of  ejectment,  just  mentioned,  the  Revised 
Statutes  provide  for  the  admeasurement  of  the  widow's  dower,  if  it  be 

'Co.  Litt.  30  b,  31.    Bac.   Abr.  tit.  4  2  R.  S.  343,  §  24. 

Dower.     2B1.  Com.  129.  6  Id.  332. 

2  Hurd  v.  Grant,  3  Wend.  340.  6  Shaver  v.  McGraw,  12  TVend.  55s. 

s  See  Allan  v.  Smith,  20  J.  R.  477 ;  S.  C.  7  Sherwood  v.  Vandenberg,  2  Hill,  307, 

1  Cowen,  180,  for  the  pleadings  and  prac-  8  2  R.  S.  304,  §  4. 
tice  in  that  action. 


Ob.  9.J  Dower.  69o 

not  assigned  to  her  within  forty  days  after  the  death  of  her  husband,  on. 
an  application  by  petition  to  the  supreme  court,  the  county  court,  or  the 
surrogate  of  the  county  in  which  the  lands  lie.1  The  widow  to  whom 
dower  shall  be  admeasured  under  the  statute,  at  the  expiration  of  thirty 
days  from  the  date  of  the  confirmation,  may  bring  an  action  of  ejectment 
to  recover  the  possession  of  the  lands  so  admeasured  to  her  for  her  dower, 
in  which  action  her  right  to  such  dower  may  still  be  controverted,  and  upon 
recovery  she  may  hold  the  same  during  her  life,  subject  to  the  payment  of 
all  taxes  and  charges  accruing  thereen  subsequent  to  her  taking  posses- 
sion.2 This  proceeding  is  only  between  the  widow  and  the  owners  of  the 
freehold,  and  it  settles  only  the  portion  to  which  she  is  entitled  in  seve- 
ralty, if  her  right  shall  not  be  successfully  resisted  in  her  subsequent 
action  to  obtain  the  possession;  and  as  to  that,  it  is  conclusive.3 

Admeasurers  of  dower  cannot  take  into  consideration  any  gifts  of  the 
husband  to  her  to  diminish  her  dower ;  nor  can  they  go  into  an  inquiry 
whether  the  husband  had  made  a  settlement  on  his  wife  in  lieu  of  dower.4 

It  does  not  belong  to  our  subject  to  treat  more  at  length  of  the  widow's 
remedy  at  law.  From  what  has  been  said,  it  is  obvious  that  there  are 
cases  where  the  remedy  at  law  is  extremely  imperfect  and  inadequate, 
and  others,  where  it  can  only  be  asserted  in  a  court  of  equity.  The  pres- 
ent object  is  merely  to  bring  to  the  notice  of  the  reader  a  brief  view  of 
the  doctrine  of  courts  of  equity  in  relation  to  this  subject.  The  juris- 
diction of  equity  in  this  class  of  cases  has  been  ably  vindicated  in  the 
English  courts  on  several  occasions,  and  the  doctrine  there  established 
has  been  firmly  incorporated  into  our  equity  jurisprudence.5 

In  a  bill  filed  by  the  widow  for  dower,  before  Chancellor  Kent,  the 
jurisdiction  of  the  court  was  held  to  be  unquestionable  and  well  estab- 
lished. In  that  case,  with  respect  to  a  portion  of  the  premises  out  of 
which  dower  was  claimed,  it  was  alleged  that  the  husband  was  not  seised 
during  the  coverture.  It  appeared  that  on  the  day  of  the  marriage  and 
before  it  was  solemnized,  the  intended  husband  conveyed  to  his  daughter 
by  his  former  wife,  the  land  in  dispute,  without  consideration  and  without 
the  knowledge  of  the  intended  wife.  The  husband,  notwithstanding,  con 
tinued  in  possession  for  many  years,  and  mortgaged  the  same   to  one 

■  2  R.  S.  488.     Code  of  Procedure,  §  30.  *  Hyde  v.  Hyde,  4  Wend.  630. 

5  2  R.  S.  491,  §  18.  6  Pultney  v.  Warren,  6  Ves.  89.  Stride- 

3  Ward  v.  Kilts,  12  Wend.  137.     Jack-  land  v.  Strickland,  6  Beav.  77,  80.    Curtis 

eon  v.  Randall,  5  Cowen,  1G8.     Jackson  v.  Curtis,  2  Bro.  C.  C.  620.     Mundy  v. 

v.  De  Witt,  6  id.  316.     Same  v.  Church-  Mundy,  2  Ves.  jr.  122.     Swaim  v.  Perine. 

ill,  7  id.   287.    Jackson  v.  Nixon,  17  J.  5  J.  Ch.  R.  482.     Badgley  v  Bruce.  4 

R.  123.  Paige,  98 


COG  Dower.  fCh.  9. 

Dunn,  for  a  valuable  consideration.  The  premises  were  afterward? 
redeemed  by  the  daughter.  One  question  was,  whether  the  wife  of  the 
grantor  was  entitled  to  be  endowed,  thus  treating  the  deed  as  fraudulent 
and  void  as  against  her,  and  another  was  whether  she  could  be  endowed 
of  the  equity  of  redemption. 

With  respect  to  the  first  question,  Chancellor  Kent  held,  that  a  deed 
thus  given  by  the  husband  on  the  eve  of  his  marriage,  to  his  daughter, 
and  without  consideration,  was  fraudulent  as  against  the  wife's  right  of 
dower.1  In  equity  it  stands  upon  the  same  ground  of  a  similar  convey- 
ance by  the  woman  to  a  stranger,  without  the  knowledge  of  her  intended 
husband.  The  husband  has  an  equity  that  he  shall  not  be  deprived  by 
fraud  of  the  rights  which  the  law  gives  to  him  over  the  property  of  his 
wife.  The  rule  laid  down  on  this  subject  is,  that  if  a  woman  make  any 
conveyance  of  her  own  estate  before  marriage,  without  the  privity  of  her 
intended  husband,  or  confess  any  judgment,  or  create  any  incumbrance 
upon  her  estate,  other  than  such  as  are  for  a  valuable  consideration, 
they  shall  not  affect  the  husband,  and  a  court  of  equity  will,  on  a  bill 
filed  by  the  husband,  set  them  aside.2 

A  court  of  law,  it  has  been  decided,  will  not  protect  the  wife  in  this 
class  of  cases.  In  that  court,  in  an  action  of  dower,  the  court  require 
that  the  seisin  of  the  husband  should  be  established,  and  will  not  look 
beyond  the  actual  conveyance  made  by  the  husband  to  see  whether  it 
was  made  to  defraud  the  wife  of  dower  in  his  estate.3  Equity  looks  upon 
the  transaction  in  a  different  light,  and,  when  the  rights  of  purchasers 
and  incumbrancers  in  good  faith  and  for  valuable  consideration  arc  not 
involved,  holds  the  fraudulent  conveyance  as  a  nullity  as  to  the  wife's 
claim  to  dower,  and  would  of  course  set  it  aside  on  a  proper  application ', 
or  disregard  it  when  it  should  be  interposed  as  an  obstacle  to  her  recov- 
ery. The  equity  of  the  husband  to  his  wife's  estate  is  of  no  higher 
character  than  the  equity  of  the  wife  to  her  husband's.  Both  rest  upon 
the  same  footing. 

With  regard  to  the  question  whether  the  widow  was  entitled  to  dower 
in  an  equity  of  redemption,  it  has  been  repeatedly  held  in  this  state,  in 
the  affirmative,  even  in  cases  where  she  has  joined  with  her  husband  in 
the  mortgage.  But  in  such  a  case  she  is  bound  to  a  ratable  contribution, 
as  doweress  for  the  redemption  of  the  mortgage.4     The  mode  in  which 

1  Swaim  v.  Perine,  5  J.  Ch.  E.  489.  3  Baker  v.  Chase,  6  Hill,  482. 

Perine  v.  Dunn,  3  id.  515.  "  Swaim  v.  Perine,  5  J.  Ch.  Pv.  4S>1. 

*  Clancy  on  Rights  of  Women.  614,  615.  Van  Duyne  v.  Th.iyers,  14  Wend.  238; 

Howard  v.  Hooker,  2  Ch.  R.  81.     Carle-  S.  C.  19  id.  162.     Hawley  v.  Bradford.  9 

ten  v.  Dorset,  2  Vern.  17  Paige  200.  Bell^.MayoroflST.Y.10id.49. 


Oh.  9.J  Dowek.  697 

4his  is  accomplished,  where  the  heir  has  redeemed  the  land  by  paying 
off  the  mortgage,  and  the  widow  files  her  bill  against  him,  for  her  dower 
is  by  paying,  during  her  life,  to  the  heir  the  one  third  of  the  interest  on 
the  amount  paid  by  the  latter,  from  the  time  of  such  payment,  or  the 
value  of  such  annuity,  to  be  computed  by  the  court,  or  under  its  direc- 
tion.1 The  heir  who  redeems  premises  subject  to  dower,  is  liable  to 
account  to  the  widow  for  the  rents  and  profits  from  the  death  of  the  hus- 
band. She  is  entitled  to  one  third  part  of  the  rents  and  profits,  subject 
to  her  ratable  contribution  towards  the  redemption  of  the  mortgage.2 

The  general  doctrine  that  equity  has  concurrent  jurisdiction  with  courts 
of  law,  in  actions  of  dower,  was  sanctioned  by  Chancellor  Walworth  in  a 
case  before  him.3  He  stated  the  settled  rule  to  be,  that  upon  a  bill  in 
equity  for  the  assignment  of  dower,  if  the  seisin  of  the  husband  and  the 
title  of  the  wife  be  admitted  by  the  answer,  to  proceed  at  once  to  assign 
dower,  and  to  take  an  account  of  the  mesne  profits  since  the  death  of  the 
husband,  if  it  was  a  case  in  which  the  widow  would  be  entitled  to  damages 
at  law.  But  if  the  title  of  the  complainant  be  denied,  the  court  retained 
the  bill,  and  directed  a  suit  at  law  to  try  the  title ;  and  then  would  give 
possession  to  the  widow  as  the  right  should  be  established. 

Courts  of  equity  can  so  marshal  the  assets  of  the  husband  as  to  relieve 
tie  real  estate  to  which  the  wife's  dower  attaches,  of  an  incumbrance  which 
at  law  overreaches  the  dower.  Thus,  where  the  husband,  for  the  purpose 
of  depriving  his  wife  of  any  share  of  his  personal  property  after  his  death, 
pirchased  real  estate  from  his  son  at  a  price  far  beyond  its  value,  and 
give  his  bond  and  mortgage  for  the  purchase  money,  the  collection  of 
which  was  not  to  be  enforced  during  the  life  of  the  husband,  though  the 
tiansaction,  it  was  said,  could  not  be  set  aside  on  a  bill  filed  by  the  widow, 
because  the  husband  had  a  legal  right  to  give  his  personal  property  to 
whom  he  pleased,  still,  equity  would  compel  the  son  to  apply  the  personal 
property,  in  his  hands,  applicable  to  the  bond  and  mortgage,  in  exonera- 
tion of  the  dower  of  the  widow7.4 

The  same  principle  has  been  applied  in  favor  of  the  dower  of  the  widow 
against  the  equitable  lien  of  the  vendor  for  the  purchase  money  of  real 
estate,  when  no  security  had  been  taken  for  the  same.  The  widow  takes 
her  dower  subject  to  this  equitable  lien.  But  as  the  unpaid  purchase 
money  is  the  personal  debt  of  the  husband,  the  widow  has  a  right  in 
equity  to  have  the  estate  of  her  husband  in  the  hand  of  his  personal 
representatives,  and  also  that  which  has  descended  to  his  heirs  at  law, 

1  Swaim  v.  Perine,  5  J  Cli.  E.  403.  3  Badgley  v.  Bruce,  4  Paige,  98. 

5  Id.  4  Holmes  v.  Holmes,  3  Paige,  363. 

Eq.  Jur.  83 


698  DcnvER.  [Oh.  9 

first  exhausted  in  a  due  course  of  administration,  before  a  resort  is  had  tc. 
her  dower  right  in  the  land  for  the  recovery  of  the  unpaid  purchase 
money.  In  other  words,  the  assets  must  be  marshaled  in  favor  of  the 
widow's  claim  of  dower.1 

The  circumstance  that  the  premises  are  at  the  death  of  the  husband  ir 
the  hands  of  a  termor,  whose  term  has  not  expired,  afforded,  before  the 
Revised  Statutes,  a  just  ground  to  go  into  equity  for  relief.  As  her 
action  could  only  be  brought  against  the  tenant  of  the  freehold,  if  neither 
he  or  the  termor  would  assign  her  the  dower,  the  remedy  at  law  was  diffi- 
cult and  perplexing.  And  though  under  the  present  law  an  action  of 
ejectment  will  lie  by  the  widow,  in  such  a  case,  against  the  party  in  pos- 
session, for  her  dower,  she  can  still  resort  to  equity  in  the  first  instance, 
which  will  afford  her  a  better  remedy.2 

While  equity  thus  affords  to  the  widow,  in  many  cases,  a  more  conven- 
ient means  than  courts  of  law  of  obtaining  her  dower,  it  enables  the  heir, 
on  the  other  hand,  to  avail  himself  of  defenses  which,  by  the  strict  rulos 
of  the  former  law,  were  not  available.  Thus  a  collateral  satisfaction  wis 
not  pleadable  at  law  in  bar  to  a  freehold  right.3  But  in  equity  the  ac- 
ceptance of  a  term  for  years,  or  of  a  sum  of  money,  or  any  other  collateral 
satisfaction,  will  constitute  a  good  bar.4  Under  the  jurisprudence  of  this 
state,  which  allows  an  equitable  defense  to  be  set  up  to  a  legal  demand, 
it  is  presumed  at  this  day,  that  a  collateral  satisfaction  may  be  interposed 
as  a  defense  in  an  action  of  ejectment  for  dower,  to  the  widow's  right 
to  recover.5 

Courts  of  law  as  well  as  courts  of  equity  hold  the  widow  to  elect  be 
tween  her  dower  and  a  legacy  given  in  lieu  of  it.6  The  Revised  Statutes 
have  provided  for  barring  dower  by  a  jointure,  with  her  assent.  Indeed, 
any  pecuniary  provision  made  for  the  benefit  of  the  intended  wife,  in  lieu 
of  dower,  if  assented  to  by  her,  is  a  bar  to  her  dower.7  The  doctrine  of 
election,  also,  which  has  been  elsewhere  considered,  presents  illustrations 
of  tbe  rules  by  which  courts  of  equity  are  governed  in  questions  of  dower.8 

If  a  provision  made  for  the  widow  in  lieu  of  dower  be  accepted  by  her, 
and  fail  by  reason  of  the  illegality  of  the  instrument  by  which  it  was 

1  Warner  v.  Van  Alstyne,  3  Paige,  513,  v.  Quick,  5  Sandf.  S.  C.  R.  612.  Gardner 
515.  v.  Lee,  11  Barb.  558.     Bouton  v.  The 

2  Badgley  v.  Bruce,  4  Paige,  100,  101.  City  of  Brooklyn,  15  id.  375,  384.    Hin- 

3  Co.  Litt.  36  b.  Jones  v.  Powell,  6  J.  man  v.  Judson,  13  id.  629,  631.  Hunt  v. 
Ch.  R.  200.  Farmers'  Loan,  8  How.  416. 

4  Id.  Ilarg.  note,  224.  Bac.  Abr.  tit.  •  Van  Orden  v.  Van  Orden,  10  J.  R.  30. 
Dower  and  Jointure,  F.  7  1  R.  S.  741,  §§  9,  10,  11. 

•  Giles  v.  Lyon,  4  Comst.  599.    Grant        8  Ante,  p.  544  et  seq. 


Ch.  9.J  Partition.  699 

created,  she  is  not  bound  in  equity  by  that  election,  except  as  ftgains* 
bona  fide  purchasers  and  mortgagees ;  but  may  claim  her  dower.1 

There  may  be  cases  where  a  just  equivalent  in  money  is  better  for  all 
parties  than  a  recovery  of  the  dower  in  an  action  at  law.  Suppose  the 
husband  was  a  tenant  in  common  with  divers  other  persons,  and  that  the 
premises  have  passed  into  the  hands  of  different  purchasers,  who  have 
not  paid  the  purchase  money:  a  court  of  law  could  only  adjudge  to  the 
widow  a  third  part  of  the  land  itself.  But  equity  could  leave  the  pur- 
chaser undisturbed,  and  with  the  assent  of  the  widow,  decree  her  a  com- 
pensation in  lieu  of  dower.2 

The  foregoing  cases  are  enough  to  illustrate  the  equity  jurisdiction  in 
questions  of  dower,  both  where  the  widow  claims  relief,  and  where  relief 
|'is  sought  against  her.  The  subject  in  its  other  aspects  belongs  to  treatises 
on  law  rather  than  equity.  The  occasions  for  the  interposition  of  equity 
are  of  less  frequent  occurrence  here  than  in  England,  and  are  less  neces- 
sary now  than  formerly. 


SECTION  II. 


OF    PARTITION". 


At  common  law,  estates  with  respect  to  the  connection  of  their  owners, 
when  held  by  more  than  one  person,  were  divided  into  estates  in  joint 
tenancy,  in  common,  and  coparcenary.  The  two  first  were  created  by  the 
act  of  the  parties,  and  the  last  by  the  act  of  the  law.  Though  at  com- 
mon law  partition  could  be  made  in  every  case,  by  the  consent  of  all  the 
owners,  yet  it  could  not  be  compelled,  by  one  co-tenant  against  the  will 
of  the  others,  or  of  any  of  them,  except  in  the  case  of  coparceners,  until 
the  statute  of  31  Henry  8,  ch.  1,  and  32  Henry  8,  ch  32,3  extended  the 
writ  of  partition  to  joint  tenants  and  tenants  in  common. 

Under  the  colonial  government  there  were  several  acts  relative  to  parti- 
tion, passed  at  different  times  ;  but  at  the  close  of  the  revolution  and  in 
1788  the  above  mentioned  English  statutes  were  re-enacted.4  These  stat- 
utes put  the  right  to  compel  partition  between  tenants  in  common  and  joint 

1  Ilone  v  Van  Schaick,  7  Paige,  221,  ■  Co.  Litt.  187.  Bac.  Abr.  tit.  Joint 
233.  Tenants,  I,  No.  7. 

*  Herbert  v.  Wren,  7  Cranch,  370.  *  2  Greenl.  13. 


700  Partition.  [Ch.  8 

tenants  upon  the  same  footing  as  coparceners.  The  common  law  learning 
in  partition,  in  respect  to  parceners,  is  displayed  at  large  by  Lord  Coke. 
It  is  replete  with  subtle  distinctions  and  antiquated  erudition.1  The 
ancient  common  law  remedy  was  simplified  by  statute. 

In  this  state,  under  our  law  of  descents  the  estate  of  coparcenary  no 
longer  exists.  On  the  death  of  the  ancestor  intestate,  the  persons  who 
take  by  descent,  whether  male  or  female,  take  as  tenants  in  common,  in 
proportion  to  their  respective  rights.2  It  is  therefore  only  in  very  re- 
mote cases,  which  can  scarcely  ever  arise,  that  the  rules  of  the  common 
law  doctrine  of  descent  can  apply.  It  is  presumed  that  in  most  if  not  in 
all  the  states,  where  more  persons  than  one  take  by  descent,  they  take 
as  tenants  in  common,  so  that  the  former  distinctions  between  estates  in 
coparcenary  and  in  common  no  longer  exist. 

The  old  real  actions  having  been  all  abolished,  the  legislature  provided, 
in  the  Revised  Statutes,  a  convenient  mode  of  making  partition  between 
joint  tenants  and  tenants  in  common,  by  petition  to  the  supreme  court, 
or  the  court  of  common  pleas  of  the  county  where  the  lands  are  situated, 
and  now  the  county  court.3  The  statute  also,  in  terms,  gives  to  the  court 
of  chancery  the  same  power,  upon  petitipn,  or  bill  filed  in  that  court,  to 
decree  partition  and  sales  of  lands,  tenements  and  hereditaments,  as  is 
therein  given  tothe  common  law  courts  in  like  cases  ;4  and  in  a  subsequent 
section  enacts,  that  whenever  partition  shall  be  decreed  by  a  court  of 
equit}T,  if  it  shall  appear  that  it  cannot  be  made  equal  between  the  parties, 
without  prejudice  to  the  rights  and  interests  of  some  of  them,  the  court 
may  decree  compensation  to  be  made  by  one  party  to  the  other,  for  equal- 
ity of  partition,  according  to  the  equity  of  the  case.s 

The  jurisdiction  of  courts  of  equity  in  matters  of  partition  existed  an- 
terior to  the  Revised  Statutes,  and  independently  of  any  statute  regulation 
on  the  subject.  But  it  was  intended  by  the  legislature  that  subsequent 
to  the  adoption  of  the  Revised  Statutes  the  proceedings  should  be  con- 
formed  to  the  statute.6 

A  court  of  equity,  as  was  remarked  by  the  learned  judge  in  a  recent 
case,7  administers  its  relief  according  to  its  own  notions  of  general  jus 
lice  and  equity  between  the  parties.     It  will  adjust  by  its  decree,  all  tho 
equitable  rights  of  the  parties  interested  in  the  premises.     It  is  not  re- 

'  Co.  Litt.  tit.  Parceners,  163-175.  v.  Wren,   7   Crancb,   370.     Jackson  v. 

2  1  R.  S.  753.  Edwards,  7  Paige,  386. 

•  2  R.  S.  317  et  seq.  7  Paige,  J.  in  Green  v.  Putnam,  1  Barb. 

•  Id.  329,  §  79.  S.  C.  R.  509.     Haywood  v.  Judson,  4  Ul 

•  2  R.  S.  330,  §  83.  229. 
'  Lark  in  v.  Munn,  2  Paige,  27.    Herbert 


Oh.  9.J  Partition.  701 

strained  as  a  court  of  law  is,  to  a  mere  partition  of  the  lands  between  the 
parties,  according  to  their  interests  in  the  same,  and  having  a  regard  tc 
the  true  value  thereof.  But  it  may,  with  a  view  to  a  more  perfect  par- 
tition of  the  premises,  decree  a  pecuniary  compensation  to  one  of  the  par- 
ties, for  equality  of  partition,  so  as  to  prevent  any  injustice  or  unavoidable 
inequality.  So  a  court  of  equity  will  assign  to  the  parties  respectively, 
such  parts  of  the  estate  as  will  best  accommodate  them,  and  lie  of  the 
most  value  to  them,  with  reference  to  their  respective  situations  in  rela- 
tion to  the  property  before  the  partition. 

It  is  upon  these  principles  that  when  a  tenant  in  common  lays  out 
.money  in  improvements  on  the  estate,  although  the  money  so  expended 
does  not,  in  strictness,  constitute  a  lien  upon  the  estate,  yet  a  court  of 
equity  will  not  grant  a  partition,  without  first  directing  an  account  and  a 
suitable  compensation  ;  or  else,  in  the  partition  it  will  assign  to  such  ten- 
ant in  common,  that  part  of  the  premises  on  which  the  improvements 
have  been  made.1  To  entitle  the  tenant  in  common  to  this  allowance.  It 
is  not  necessary  for  him  to  show  the  assent  of  his  co-tenants  to  such  im- 
provements, or  a  promise  on  their  part  to  contribute  their  share  of  the 
expense  ;  nor  is  it  necessary  for  them  to  show  a  previous  request  to  join 
in  the  improvements,  and  a  refusal.2 

It  was  on  the  same  principle  that  where  an  idiot  had  pulled  down  a 
school  house  on  a  lot  owned  by  him  and  the  trustees  of  the  district  in  com- 
mon, the  court  held  that  an  equitable  partition  should  be  so  made,  thac 
the  trustees  might  be  allowed  for  their  damages  in  the  share  set  off  to 
them.3 

So  where  five  of  six  children,  the  sixth  being  an  idiot,  made  an  arrange- 
ment by  which  they  conveyed  one  half  of  the  premises  owned  in  common, 
to  A.,  being  one  of  them,  and  the  other  half  to  B.  another  heir,  upon  B.'s 
agreement  to  support  the  idiot,  whose  share  B.  was  to  have,  it  was  held 
that  a  purchaser  from  A.,  who  supposed  he  was  acquiring  title  to  the  half 
set  off  to  him,  was  equitably  entitled,  on  a  partition,  to  have  the  idiot's 
share  set  off  on  the  half  conveyed  to  B.4 

In  this  case,  a  court  of  law  could  not  afford  any  relief  suitable  to  the 
equity  of  the  case.  No  title  to  the  idiot's  share  of  the  property  could 
pass  by  the  agreement,  and  the  agreement  to  support  the  idiot  was  with- 
out consideration  and  void.  The  only  effectual  remedj'-,  in  both  cases, 
could  be  found  in  an  equitable  partition  of  the  property,  and  this  was 

1  Town   v.   NWham,   3    Pai^e,   540.        3  Matter  of  Ililler,  3  Palpe,  109. 
Green  v.  Putnam.  1  Barb.  S.  C.  P..  507.  4  Teal  v.  Wood  worth,  3  Paige,  470. 

■W 


702  Partition.  [Oh.  0 

accordingly  granted  by  a  court  of  equity.  The  court  derived  its  power  in 
this  respect,  not  from  the  statute  relative  to  the  partition  of  lands,  but 
from  its  ordinary  jurisdiction  over  the  subject  of  partition. 

According  to  the  English  practice,  the  parties  on  a  decree  of  partition 
execute  mutual  releases  to  each  other,  to  be  settled  by  a  master,  and  such 
was  the  practice  here,  before  the  statute  of  1813.1  Under  that  statut6 
it  was  held  by  Chancellor  Kent  that  mutual  releases  were  unnecessary, 
but  the  partition  became  complete  by  the  final  decree  of  the  court  con- 
firming the  partition  as  made  by  the  commissioners.2  Kfeme  covert 
cannot  be  bound  by  a  decree  against  her  husband  in  a  partition  suit  tq 
which  she  is  not  a  party.  It  is  proper,  therefore,  in  all  cases  where  a 
sale  of  the  premises  will  probably  be  necessary,  that  the  wife  should  be 
joined  with  the  husband  as  a  party  in  the  suit,  so  that  the  purchaser's 
interest  in  the  premises  may  not  be  charged  with  the  incumbrance  of  her 
contingent  claim  of  dower.  But  when  an  actual  partition  of  the  prem- 
ises can  be  made,  it  is  not  material  that  the  wife,  who  has  only  an  inchoate 
right  of  dower  in  her  husband's  undivided  interest  therein,  should  be  madi 
a  party ;  as  her  dower  will  attach  upon  that  part  of  the  premises  which 
shall  be  set  off  to  him  in  severalty.3 

Although  the  Revised  Statutes  have  given  specific  directions  as  to  the 
mode  of  ascertaining  and  securing:  the  shares  of  the  proceeds  belonging 
to  the  tenants  in  dower  and  by  the  curtesy,  and  other  tenants  for  life 
having  present  estates  in  possession  in  the  premises,4  there  is  still  a  large 
class  of  future  estates,  both  vested  and  contingent,  that  are  not  embrace! 
in  those  specific  directions.  It  has  been  made  a  question  whether  sum 
contingent  interest  can  be  sold  under  a  decree,  in  cases  where  the  com- 
missioners have  reported  that  a  sale  is  necessary  to  secure  the  interests 
of  the  respective  parties.  The  act  of  1813  did  not  provide  even  for  mak- 
ing a  widow  a  party  who  had  a  present  right  of  dower  in  the  premises, 
il  though  that  dower  still  remained  unassigned  ;  nor  did  it  contain  a  pro- 
vision for  creditors,  who  had  liens  upon  some  of  the  shares  of  the  tenants 
:r.  common,  to  be  made  parties  to  the  proceedings,  nor  for  the  payment  of 
their  debts  out  of  the  proceeds  of  the  shares  on  which  such  debts  were 
n  lien.  The  Revised  Statutes  provide  for  both  these  defects.5  The  ehan 
eellor,  however,  thought,  on  a  careful  examination  of  the  several  pro 
visions   of  the   Revised  Statutes  relative   to  the  partition  of  lands,  in 


1 1  E.  L.  514,  §  17.     Young  v.  Cooper,  3  Wilkinson  v.  Parish,  3  Paige,  658. 

3  J.  Ch.  E.  296.     Jackson  v.  Edwards,  7  (2E.  S.  325,  §§  50,  51. 

Paige,  464.  b  Id.  and  §§  44,  45. 

3  Young  v.  Cooper,  supra. 


Ch.  9.]  Right  of  Dower.  70* 

connection  Avith  the  former  legislation  on  the  subject,  that  a  sale  by  the 
commissioners  in  partition,  under  the  judgment  of  a  court  of  law,  or 
by  a  master  in  chancery  under  a  decree  of  that  court,  would  of  itself  be  suf- 
ficient, without  any  act  of  the  wife,  to  bar  or  extinguish  her  contingent 
ri"dit  or  interest  to  dower  in  the  share  of  her  husband,  when  she  is  made 
a,  party  to  the  suit,  whether  she  is  an  infant  or  adult.1  Although  some 
doubt  was  suggested  by  Bronson,  J.,  on  this  point,  when  the  same  cause 
was  in  the  court  of  errors,  yet  as  the  decree  was  affirmed,  and  no  dissent 
from  the  views  of  the  chancellor  was  expressed  by  the  court  of  errors, 
and  they  were  expressly  approved  by  the  only  senator  who  delivered  an 
opinion,  it  is  believed  that  the  doctrine  of  the  chancellor  is  sound.2  and 
must  be  regarded  as  the  law. 

It  was  no  doubt  the  intention  of  the  legislature,  that  the  purchaser  un- 
der the  judgment  or  decree,  where  a  sale  of  the  premises  is  found  to  be 
necessary,  should  acquire  a  perfect  title  as  against  every  future  or  con- 
tingent interest  in  any  undivided  share  of  the  property.  Without  the 
power  to  convey  such  title,  it  would  be  difficult  for  the  court  to  make  the 
partition  equal  in  the  case  of  a  sale  ;  as  a  contingent  right  of  dower  or 
other  defect  in  the  title  as  to  one  share  in  the  property,  must,  upon  a  sale, 
necessarily  diminish  the  amount  bid  for  all  of  the  shares  collectively. 
Bnt  to  enable  the  court  to  direct  a  sale  cutting  off  the  inchoate  right  of 
dower  of  the  wife,  she  should  be  a  party  to  the  suit,  and  the  value  of  her 
interest  should  be  computed  and  secured  for  her  benefit.  The  proper  rule, 
siiys  the  chancellor,  for  computing  this  interest,  during  the  life  of  the 
husband,  is  to  ascertain  the  present  value  of  an  annuity  for  her  life  equal 
tc  the  interest  in  the  third  of  the  proceeds  of  the  estate  to  which  her  con- 
tingent rif»ht  of  dower  attaches,  and  then  to  deduct  from  the  present  value 
of  the  annuity  for  her  life,  the  value  of  a  similar  annuity  depending  upon 
the  joint  lives  of  herself  and  her  husband;  and  the  difference  between 
those  two  sums  will  be  the  present  value  of  her  contingent  right  of  dower.3 

If  the  title  be  defective  at  the  time  of  the  sale,  under  a  decree  in  par- 
tition, the  defect  must  be  removed,  within  a  reasonable  time,  so  that  the 
purchaser  will  have  the  substantial  benefit  of  his  bargain,  or  equity  will 
not  compel  him  to  take  the  perfected  title.4 

In  general  a  partition  should  be  decreed  rather  than  a  sale.  The  lat- 
ter course  is  authorized  only  in  cases  where  an  actual  partition  cannot  be 
made  without  grcut  prcjiulice  to  the  owners.5     If,  therefore,  a  sale  would 

1  Jackson  v.  Edwards,  7  Paige,  406.  *  Id.  386. 

'  S.O.  in  Error,  22  Wend.  4!is,  512,  517.         6  2  R.  S.  330,  §  81. 

*  Jackson  v.  Edwards.  7  Paige,  4.08. 


T04  Partition.  [Cb.  9. 

be  equally  prejudicial,  an  actual  partition  should  be  made.1  If  the  aggre 
gate  amount  of  benefits  to  the  parties  from  a  sale  instead  of  a  partition, 
will  be  small,  in  reference  to  the  value  of  the  property,  there  can  be  no 
reason  to  depart  from  the  ordinary  decree  of  partition.2 

Property  may  be  so  situated  that  a  partition  cannot  be  conveniently 
made,  without  charging  upon  the  portion  assigned  to  one  party,  a  servi- 
tude or  easement  in  favor  of  another.  A  court  of  equity  has  power  to 
make  partition  upon  that  principle.3  This  will  most  frequently  occur  in 
the  partition  of  mills  and  water  rights.  The  principle  was  fully  exempli 
fied  in  Smith  v.  Smith,  already  cited. 

Where  in  an  action  for  partition  the  legal  title  is  disputed  and  doubtful, 
the  course  is  to  send  the  parties  to  a  court  of  law,  to  have  the  title  estab- 
lished.4 "Where  the  premises  are  held  adversely,  the  bill  should  be  dis- 
missed without  prejudice  to  a  new  suit  after  the  complainant  shall  have 
obtained  possession,  by  suit  at  law.  Where  there  is  no  dispute  about 
title,  partition  is  a  matter  of  right.s 

We  have  hitherto  treated  of  the  partition  of  estates  where  the  titles 
are  legal.  In  such  a  case  courts  of  equity  submit  the  legal  questions,  :.f 
the  title  be  controverted,  to  the  determination  of  a  court  of  law,  retailing 
the  bill,  for  further  action,  after  the  title  shall  have  been  established.  But 
if  the  title  be  equitable,  the  court  of  equity  decides  the  whole  matter 
without  the  intervention  of  a  court  of  law  ;  for  equitable  titles  belong  pecul 
iarly  to  courts  of  equity  to  decide.6  Thus,  the  owners  of  an  equity  of 
redemption  may  have  partition  among  themselves,  without  affecting  the 
rights  of  the  mortgagees.7  And  a  defendant  in  partition  may  set  up  in 
his  answer,  as  a  defense  to  the  suit,  an  equitable  title  in  himself  to  the 
whole  premises.8 

A  court  of  equity  may,  if  the  justice  of  the  case  require  it,  set  off  tt 
one  co-tenant  the  share  belonging  to  him,  and  decree  a  sale  of  the  residue 
for  the  benefit  of  the  other  tenants,  providing  for  compensation  in  case  of 
inequality  of  partition.9  And  partition  may  be  decreed  assigning  to  th« 
complainant  the  portion  to  which  he  is  entitled,  and  the  remainder  to  tht 
defendants,   aggregately  ;   thus  leaving  them  afterwards   to  divide  the 

1  Smith  v.  Smith,  10  Paige,  470.  6  Smith  v.  Smitb,  TO  Paige,  470.  Hay 

'2  Smith  v.  Smith,  supra.      Classon  v.  wood  t.  Jmlson,  4  Barb.  229. 

Classon,  6  Paige,  541.     Reynolds  v.  Rev-  6  Coxe  v.  Smith,  4  J.Cli.  R.  271.    Hos 

nolds,  5  id.  161.     Van  Arsdale  v.  Drake,  ford  v.  Merwin,  5  Barb.  52. 

2  Barb.  S.  0.  R.  599.  7  Wotten  v.  Copeland,  7  J.  Ch.  R.  140. 

3  Id.  Warren  v.  Barnes,  Anibl.  589.  Sebring  v.  Messereau,  Hopk.  Ch.  R.  502. 
Lister  v.  Lister,  3Y.&  Col.  540.     Hill  v.  503. 

Dey,  14  Wend.  204.  e  German  v.  Matchin,  6  Paige,  288. 

4  Coxo  r.  Smith,  4  J.  Ch.  R.  271.  '  Haywood  v.  Judson,  4  Barb.  228. 


Ch.  9.]  Compensation  for  Equality.  705 

Bliare  allotted  to  them  'when  it  shall  be  convenient.1  In  the  case  cited,  tho 
right  of  the  complainant  to  a  moiety  was  conceded  by  the  defendants,  but 
they  differed  among  themselves  as  to  the  share  to  -which  they  were  respect- 
ively entitled  in  the  other  moiety.  Some  of  them  claimed  the  whole  of  it, 
and  others  distinct  portions  of  it.  The  court  having  thus  set  off  to  the 
plaintiff  the  share  allotted  to  him,  retained  the  bill,  to  enable  the  defend- 
ants to  settle  their  respective  titles  as  amongst  themselves  at  law,  and  leav- 
ing the  question  of  partition  as  to  them  to  be  determined  on  a  future 
application. 

In  equity  there  is  no  necessity  that  a  partition  should  be  so  made  as  to 
give  each  party  a  share  in  every  part  of  the  property.  If  each  party  has 
his  share  in  value,  it  is  sufficient ;  and  if  the  land  allotted  to  one  exceeds 
in  value  that  allotted  to  another,  the  court  can  compel  the  former  to  make 
compensation  to  the  latter,  for  equality  of  partition.2 

1  Phelps  v.  Green,  3  J.  Ch.  R.  302.  R.  341.     Earl  of  Clarendon  v.  Hornby,  1 

Brookfield  v.  Williams,  1  Green's  Ch.    P.  Wms.  446. 
Eq.  Jub.  89 


CHAPTER  X. 


OF  PARTNERSHIP. 


THE  necessity  of  taking  an  account  on  the  final  adjustment  of  copark 
nership  dealings,  and  the  complicated  nature  of  the  remedy  at 
common  law,  in  all  cases,  and  the  total  inefficiency  of  it  in  many,  have 
led,  as  has  been  already  stated,  to  the  remedial  interference  of  courts  of 
equity.  Whether  the  copartnership  be  dissolved  by  mutual  consent  or 
by  efflux  of  time,  or  •whether  it  be  terminated  by  the  death  or  insolvency 
of  one  or  more  of  the  partners,  a  court  of  equity  affords  the  most  perfect 
means  of  winding  up  its  affairs,  and  of  settling  the  various  equities  which 
may  exist.  From  these  causes,  the  jurisdiction  of  courts  of  equity  in 
matters  of  copartnership  has  often  been  referred  to  their  jurisdiction  over 
matters  of  account. 

As  partners  are  joint  tenants  of  the  stock  and  effects  of  the  concern, 
the  rights  and  remedies  of  the  firm,  by  the  strict  rules  of  the  common 
law,  on  the  death  of  one  go  to  the  survivor:1  and  this  whether  the  joint 
tenancy  be  of  goods  and  chattels  in  possession  or  in  right,  or  of  joint 
tenants  of  a  freehold.2  An  exception  was  made,  at  an  early  day,  in  favor 
of  merchants,  which  has  been  extended  to  traders  generally,  and  which 
in  truth,  at  this  day,  embraces  all  copartnership  transactions.  The  rem- 
edy at  law  still  survives,  but  the  right  and  the  remedy  in  equity,  vests 
in  the  representatives  of  the  deceased  copartner.3  The  custom  or  law  of 
merchants,  excluding  survivorship,  extends  to  all  traders  ;  for  the  rule  is, 
that  jus  accrescendi  inter  mercatores  pro  benejicio  commercii  locum  non 
habet.*  In  Allen  v.  Blanchard,  the  principle  was  applied  to  a  copart- 
nership in  the  practice  of  physic,  which  was  held  to  be  within  the  rule 
excluding  survivorship. 

These  principles  give  rise  to  another  source  of  equitable  jurisdiction. 
A  surviving  partner,  though  he  has  the  legal  right  to  the  partnership 

Co.  Litt.  182  a.  Jeffreys  v.  Small,  1  Vera.  217.    Co.  Litt 

■  Id.  182. 

•  Allen  v,  Blanchard,  9  Cowen,  631.        4  Co.  Litt.  182  a.     Allen  v.  Blanchard, 

supra. 

(707) 


708  Partnership.  [Ch.  10 

effects,  yet  in  equity  is  considered  merely  as  the  trustee  tc  pay  the 
partnership  debts,  and  dispose  of  the  effects  of  the  concern  for  the  benefit 
of  himself  and  the  estate  of  his  deceased  partner.1  On  the  same  prin- 
ciple the  effects  of  a  copartnership,  on  the  insolvency  of  the  firm,  are  in 
equity  considered  as  a  trust  fund  for  the  payment  of  the  partnership 
debts,  ratably  ;  and  they  "will  be  so  applied  upon  the  application  of  either 
of  the  partners.2  Hence  the  unquestioned  jurisdiction  of  equity  over 
trusts  affords  an  ample  field  for  the  exercise  of  jurisdiction,  as  well  over 
the  individual  partners  as  over  the  effects  of  the  copartnership,  in  cases 
of  death  or  insolvency.  And  this  jurisdiction  can  be  exerted  either  on 
the  application  of  a  copartner,  or  the  representatives  of  the  deceased  co- 
partner, or  the  creditors  of  the  firm,  or  of  an  individual  member  of  the 
firm.  For  though  the  creditors  of  one  of  the  partners  has  no  lien  upon 
the  property  and  effects  of  the  copartnership,  yet  a  court  of  equity  will 
aid  the  creditor  of  an  individual  partner,  by  a  quasi  substitution,  and  thus 
enable  him  to  acquire  his  demand  through  the  equities  of  the  partners  as 
between  themselves,  or  their  representatives.3 

But  whether  the  jurisdiction  of  courts  of  equity  over  partnership  mat- 
ters be  referable  to  their  general  jurisdiction  over  accounts,  or  over  trusts, 
is  perhaps  of  no  moment,  especially  in  this  state,  under  our  existing  sys- 
tem of  jurisprudence.  The  jurisdiction  itself  is  firmly  established,  and 
of  the  most  benignant  character. 

In  considering  the  cases  which  properly  fall  within  the  cognizance  of 
courts  of  equity,  it  is  first  necessary  to  determine  what  constitutes  a 
partnership  between  the  parties  themselves.  This  is  defined  by  an  ele- 
mentary writer  of  high  reputation  on  the  subject  of  partnership,  thus: 
Partnership  between  tae  parties  themselves  is  a  voluntary  contract  be- 
tween two  or  more  peruons  for  joining  together  their  money,  goods,  labor 
and  skill,  or  any  or  all  of  them,  under  an  understanding  that  there  shall 
be  a  communion  of  profit  between  them,  and  for  the  purpose  of  carrying 
on  a  leo-al  trade,  business  or  adventure.4  This  definition  has  been  sub- 
stantially sanctioned  by  courts  of  law  and  equity  in  this  state.  To  con- 
stitute a  partnership  as  between  the  parties  themselves,  there  must,  says 
Chancellor  Walworth,  be  a  joint  ownership  of  the  partnership  funds, 
according  to  the  intention  of  the  parties ;  and  an  agreement,  either  ex- 
press or  implied,  to  participate  in  the  profits  and  losses  of  the  business, 

J  Case  v.  Abeel,  1  Paige,  393.  '  Ketchum  v.  Durkee,  1  Barb.  Ch.  R. 

4  Egberts  v.  Wood,  3  Paige,  517.   Innes  480. 
v.  Lansing,   7  id.   583.     Whiteright  v.        4  Collyer  on  Partnershp,  2.    Pattison  y 

Stimpson,  2  Barb.  S.  C.  R.  379.  Blanohard,  1  Seld.  183. 


Ch.  10.]  Partnership.  709 

either  ratably  or  in  some  other  proportion  to  be  fixed  upon  by  the  copart- 
ners.1 A  partnership,  says  Woodworth,  J.,  is  a  joint  undertaking  tc 
share  in  the  profit  and  loss.2  A  partnership,  says  Sutherland,  J.,  is 
nothing  more  than  a  community  of  interest  between  two  or  more  persons, 
and  a  sharing  of  profit  and  loss,  either  in  relation  to  a  general  trade  or  a 
specific  adventure.  To  constitute  a  partnership  in  a  particular  purchase 
as  in  a  single  concern,  there  must  either  be  a  joint  undertaking  to  pay, 
or  an  agreement  to  share  in  the  profit  and  loss.3  It  is  a  clear  proposi- 
sition,  that  he  who  is  to  take  a  part  of  the  profits  indefinitely,  shall,  by 
operation  of  law,  be  made  liable  to  losses  ;  upon  the  principle  that  by 
taking  part  of  the  profits  he  takes  from  the  creditors  a  part  of  that  fund 
which  is  the  security  for  the  payment  of  their  debts.4  This  right  to 
share  in  the  profits  as  such  ;  such  as  would  for  that  reason  alone  entitle 
him  to  an  account  in  equity  against  the  other  persons  concerned  in  the 
business,  seems  essential  to  constitute  a  partnership  as  between  them- 
selves.5 

"Where  two  persons  agreed  to  burn  lime  on  shares,  one  to  fill  a  kiln 
with  stone,  and  the  other  to  burn  the  kiln  and  furnish  the  necessary  wood 
for  the  purpose,  the  lime  to  be  equally  divided  between  them,  it  was  held 
that  a  technical  partnership  existed  between  the  parties.' 

But  an  agreement  by  one  to  work  another's  farm  on  shares,  does  not 
make  them  partners.  Such  parties  arc  merely  tenants  in  common  of  the 
crops.7  So  a  person  who  is  employed  in  the  business  of  another,  and  is 
to  be  compensated  by  a  salary,  and  a  share  of  the  profits,  and  who  is  not 
also  liable  for  losses,  is  not  a  partner.'  So  an  agent  or  servant  who  is  to 
obey  orders,  and  has  no  interest  in  the  capital  stock,  is  not  a  partner  even 
as  to  third  persons,  merely  because  he  is  to  receive  a  share  of  the  profits 
of  the  business  as  a  compensation  for  his  services.9  Though  it  be  true, 
as  a  general  rule,  that  a  communion  of  profits  will  make  men  partners, 
and  draw  after  it  a  liability  for  losses,  yet  it  is  well  settled  that  the  rule 
is  not  universal.     And  it  was  said  by  Bronson,  J.,  in  the  last  mentioned 

1  Chase  v.  Barrett,  4  Paige,  ICO.  Champion  v.  Bostwick,  18  Wend.  175. 

8  Reynolds  v.  Cleveland,  4  Cowen,  288.  Pattison  v.  Blanchard,  1  Seld.  188-1 89. 

'  Cumpston  v.  McNair,  1  Wend.  4G3.  6  Mnsier  v.  Trnmpbonr,  5  Wend.  274. 

Post  v.  Kimberly,  9  J.  R.  495,  496,  per  7  Putnam  v.  Wise,  1  Hill,  275. 

Spencer,  J.    Porter  v.  McClure,  15  Wend.  8  Yandenburgh  v.  IIull,  20  Wend.  70 

193.  per  Bronson,  J.  See  remarks  of  Ch.  Walworth,  in  Cham- 

4  Doe  v.  Halsey,  16  J.R  40.    Chase  v.  pion  v.  Bostwick,  18  id.  184,  185. 

Barrett,  4  Paige,  159.  •  Id.    Burekle  v.  Eckart,  1  Denio,  837; 

*  Ileirastreet  v.  Ilowland.  5  Denio.  68.  affirmed  3  Comst.  132. 


710  Partnership.  [Ch.  10 

case,  and  approved  by  the  court  of  appeals,  in  the  same  case,  that  the  ex- 
ception which  will  best  reconcile  the  cases,  and  which  is  the  least  liable  to 
abuse,  and  which  is  so  distinctly  marked  that  it  can  be  easily  adminis- 
tered, is  that  which  allows  one  man  to  employ  another  as  a  subordinate 
in  his  business,  and  agree  to  pay  him  out  of  profits,  if  any  shall  arise, 
without  giving  the  party  employed  the  rights,  or  subjecting  him  to  the 
liabilities  of  a  partner.1 

The  definition  of  a  partnership,  as  already  given,  would  seem  to  limit 
the  subject  matter  of  a  partnership  to  money,  goods,  labor  and  skill,  em- 
ployed for  a  communion  of  profit,  in  a  legal  trade,  business  or  adventure. 
But  a  partnership  may  exist  in  real  estate,  and  in  ships,  notwithstanding 
the  title  to  such  property  is  usually  held  in  common.  Thus,  though  part 
owners  of  a  vessel  are  in  general  tenants  in  common,  and  not  joint  ten- 
ants, yet  it  has  been  held  in  this  state,  that  the  owners  of  a  ship  may 
hold  her  in  partnership,  and  may  be  interested  as  such,  in  her  voyages  and 
cargoes,  or  in  a  particular  voyage.3. 

At  law,  the  general  rule  was  formerly  stated  to  be  that  where  real  es- 
tate was  held  by  partners  for  the  purposes  of  the  partnership,  they  did 
not  hold  it  as  partners,  but  as  tenants  in  common,  and  the  rules  relative 
to  partnership  property  did  not  apply  in  regard  to  it.3 

Where  real  estate  is  conveyed  to  copartners,  in  their  individual  names, 
for  the  use  and  benefit  of  the  firm,  or  is  so  conveyed  to  them  in  payment 
of  debts  due  to  the  partnership,  the  legal  title  vests  in  the  grantees 
thereof,  as  in  ordinary  conveyances  of  real  estate.  And,  by  the  common 
law,  where  land  was  purchased  with  copartnership  funds,  for  copartner- 
ship purposes,  and  was  conveyed  to  all  the  partners  generally,  in  fee,  it 
would  at  law  create  a  joint  tenancy  ;  so  that  neither  could  convey  any 
more  than  his  share  of  the  land  during  the  lives  of  his  copartners.  And 
upon  the  death  of  either  of  the  copartners,  without  having  severed  the 
joint  tenancy  by  a  conveyance,  the  legal  title  to  the  whole  of  the  land 
would  survive  to  the  other  copartners.  But  under  the  statutes  of  New- 
Vork  relative  to  joint  tenancies,  the  several  copartners  to  whom  such  a 
conveyance  is  made,  become  tenants  in  common  of  the  legal  title.  And 
upon  the  death  of  either,  the  undivided  portion  of  the  legal  title,  thus 
vested  in  the  deceased  partner, descends  to  his  heirs  at  law;  without ref- 


1  Burckle  v.  Eckart,   1   Denio,  337;  Dodington   v.  Hallet,  1  Yes.  sen.  4S7 

affirmed,  3  Comst.  132.  Smith  v.  De  Silva,  Cowp.  469. 

8  Mumford  v.  Nicoll,  20  J.  R.  611,  632,  3  Coles  v.  Coles,  15  J.  E.  159. 
635 ;  reversing  S.   C.  4  J.  Ch.  R.  522. 


Ch.  10]  Land  held  in  Partnership.  711 

erence  to  the  equitable  rights  of  the  several  partners,  in  the  land,  as  a 
part  of  the  property  of  the  firm.1 

It  is  quite  obvious  that  a  court  of  law  cannot,  upon  mere  common  law 
principles,  administer  complete  justice  in  cases  of  this  kind.  But  a  court 
of  equity  views  the  transaction  in  a  different  light.  Where  real  estate 
is  purchased  with  partnership  funds  for  the  use  of  the  firm,  and  without 
any  intention  of  withdrawing  the  funds  from  the  firm  for  the  use  of  all  or  of 
any  of  the  members  thereof  as  individuals,  it  has  never  been  doubted  in 
England,  that  such  real  estate  was,  in  equity,  to  be  considered  and  treat 
ed  as  the  property  of  the  members  of  the  firm  collectively ;  and  as  liable 
to  ail  the  equitable  rights  of  the  partners  as  between  themselves.  And 
for  this  purpose  the  holders  of  the  legal  title  are  considered,  in  equity, 
as  the  mere  trustees  of  those  who  are  beneficially  interested  in  the  fund ; 
not  only  during  the  existence  of  the  copartnership,  but  also  upon  the  dis- 
solution thereof  by  the  death  of  some  of  the  copartners  or  otherwise. 
And  the  same  rule  now  prevails  in  this  state.2 

The  decisions  in  England  are  conflicting  on  the  question,  whether  real 
estate  of  a  copartnership,  upon  the  death  of  one  of  the  copartners,  and 
after  the  debts  have  been  paid,  and  the  equities  adjusted  between  the 
several  members  of  the  firm,  belongs  in  equity,  to  the  executor  or  admin- 
istrator of  the  deceased,  as  a  part  of  his  persona)!  property;  or  whether 
the  beneficial  interest,  as  well  as  the  legal  title  of  the  deceased  in  the 
share  of  such  real  estate,  descends  tc  the  heir  at  law.  Lord  Thurlow,  on 
one  occasion,  inclined  to  think  the  interest  of  the  deceased  partner  must, 
in  equity,  be  considered  as  a  part  of  his  personal  property ;  and  that  it 
should  go  to  his  personal  representatives.3  But  upon  a  second  argument 
of  the  same  case  he  changed  his  opinion,  and  decided  that  in  the  absence 
of  any  agreement  that  the  land  should  be  converted  into  personalty  at 
the  termination  of  the  partnership,  it  belonged  to  the  heir,  as  real  estate. 
That  decision  was  followed  by  Sir  William  Grant  in  two  cases,4  both  of 
which  decisions  were  overruled  by  Lord  Eldon.5  It  is  believed  to  be  the 
general  rule  in  England,  at  this  time,  that  real  estate  belonging  to  the 


1  Buchan  v.  Sumner,  2  Barb.  Oh.  K.  &  K.  649.     Broom  v.  Broom,  3  id.  443. 
16G.     1  R.  S.  727,  §  44.  Cookson  v.  Cookson,  8  Sim.  529.  Towns- 

2  Buchan  v.  Sumner,  2  Barb.  Ch.  R.  end  v.  Devaynes,  11  id.  498,  note. 

198.     Smith  v.  Tarlton,  id.   330.    Lake  3  Thornton  v.  Dixon,  3  Bro.Ch.  0. 199. 

v.  Oradock,  3  P.  Wins.  158.     Elliot  v.  4  Bell  v.  Phyn,  7  Ves.  457.     Balmain 

Brown,  9  Ves.  597.     Smith  v.  Smith,  5  v.  Shore,  9  id.  500. 

id.  189.  Delmonico  v.  Guillaume,  2  Sandf.  6  Townsend  v.  Do  Vaynes,  Montagu  on 

Ch.  R.  366.     Feriday  v.   Wightwick,  1  Partn.  app.  97. 

R.  &  Myl.  45.     Philips  v.  Philips,  1  Myl. 


712  Partnership.  [Ch.  10 

firm,  unless  there  is  something  in  the  partnership  articles  10  give  it  a 
contrary  direction,  is  to  be  considered,  in  equity,  as  personal  property ; 
and  that  it  goes  to  the  personal  representatives  of  the  deceased  partner 
who  was  beneficially  interested  therein.1 

The  American  decisions  on  this  subject  are  various  and  conflicting. 
Thev  are  reviewed  by  the  chancellor  in  Buchan  v.  Sumner,  (supra,)  and 
he  thinks  that  they  may  be  said  to  establish  two  principles :  First,  that 
real  estate  purchased  with  partnership  funds  and  for  the  use  of  the  firm, 
is  in  equity  chargeable  with  the  debts  of  the  copartnership,  and  with  any 
balance  which  may  be  due  from  one  copartner  to  another,  upon  the  wind- 
in  or  up  of  the  affairs  of  the  firm :  Secondly,  that  as  between  the  personal 
representatives  and  the  heirs  at  law  of  a  deceased  partner,  his  share  of 
the  surplus  of  the  real  estate  of  the  copartnership  which  remains  after 
paying  the  debts  of  the  copartnership,  and  adjusting  all  the  equitable 
claims  of  the  different  members  of  the  firm  as  between  themselves,  is 
considered  and  treated  as  real  estate.* 

Although  a  court  of  equity  in  this  state  considers  and  treats  real 
property  as  a  part  of  the  stock  of  the  firm,  it  leaves  the  legal  title 
undisturbed,  except  so  far  as  is  necessary  to  protect  the  equitable  righr.s 
of  the  several  members  of  the  firm  therein.  The  separate  creditors  of 
the  individual  partners  have  no  equitable  right  to  any  part  of  the  partner- 
ship property  until  the  debts  of  the  firm  are  provided  for,  and  the  rights 
of  the  partners,  as  between  themselves,  fully  protected.3 

1  Buchan  v.  Simmer,  2  Barb.  Ch.  Pw.  337.     Baird  v.Baird,  1  D.&  Bat.  Eq.  Cas. 

199,  200.     Selkrigg  v.  Davies,  2  Dow.  P.  521.     Richardson  v.  Wyatt,   2  Desanss. 

0.  231.     Philips  v.  Philips,  1  Myl.  &  K.  Eq.  R.  471.     Winslow  v.  Chiffelle,  Harp. 

649.   Broom  v.  Broom,  3  id.  443.    Hough-  Eq.  R.  25.     McAlister  v.  Montgomery,  3 

ton  v.  Houghton,  11  Sim.  495.     Morris  v.  Hay.  R.  94.     Hunt  v.  Benson,  2  Humph. 

Eearsly,   2  Y.  &    Col.  139.     Rowley  v.  459.      Green  v.   Surviving  Partners  of 

Adams,  7  Beav.  548.  Green,  1   Ham.  Ohio  R.  535.     Green  v. 

a  Smith  v.  Jones,  3  Fairf.  337.     Blake  Graham,  5  id.  264.   Pugh  v.  Currie,  5  Ala. 

v.   Nutter,    1    Appl.  R.  19.     Duldey  v.  N.  S.  446.     Woolridge  v.  Wilkin,  3  How. 

Littlefield,    8    Shep.   R.   422.      Pitts  v.  Miss.  R.  360.     Thayer  v.  Lane,  Walk.  Ch. 

Waugh,  4  Mass.  R.   424.     Goodwin   v.  R.  200.     Coles  v.   Coles,   15  J.  R.  159. 

Richardson,  11  id.  469.    Hoxie  v.Carr,  1  Cos  v.  McBurney,  2  Sandf.  Ch.  R.  561, 

Suran.  R.  104.     Sigourney  v.  Munn,  7  Averill  v.  Loucks,  6  Barb.  19.     Dyer  v. 

Conn.  11.     Smith  v.  Jackson,  2  Edw.  Ch.  Clark,  5  Mete.  562.     Burnside  v.  Merrick, 

R.  28.   Smith  v.  Wood,  Saxt.  R.  76.  Bald-  4  id.  537. 

win  v.  Johnson,  id.  441.     McDermot  v.  3  Buchan  v.  Sumner,  2  Barb.  Ch.  R. 

Lawrence,  7  Serg.  &  R.  438.     Hale  v.  207.     Nicholl  v.  Mumford,  4  J.  Ch.  R. 

Henrie,  2  Watts,  144.     Eorde  v.  Herron,  522.     Christian  v.  Ellis,   1  Gratt.  396. 

4Munf.  316.     Deloney  v.  Hutchinson,  2  Cammack  v.  Johnson,  1  Green's  Ch.  R. 

Rand.  183.     Edgar  v.  Donnelly,  2  Munf.  163.     Pierce  v.  Tierman,  10  Gill  &  J.  253. 


Ch.  10.J  Limited  Partnerships.  713 

The  foregoing  observations  are  sufficient  to  show  what  constitutes  a 
partnership  as  between  the  parties  themselves,  and  the  general  nature 
of  the  subject  of  such  partnership,  together  with  some  of  its  incidents. 
Such  partnership  gives  them  a  right  of  action  in  their  character  of  part- 
ners as  against  third  persons,  and  enables  any  one  of  them  to  file  his  bill 
in  equity  against  the  others  for  a  dissolution  of  the  partnership,  a,  salo 
of  the  copartnership  effects,  and  a  division  of  the  proceeds  among  the 
partners.' 

Persons  become  liable  to  third  persons  as  partners,  either  by  contract- 
ing the  legal  relation  of  partnership  inter  se,  or  by  holding  themselves 
out  to  the  world  as  partners.  And  the  general  rule  is,  except  in  limited 
partnerships  formed  in  pursuance  of  the  statute,  that  not  only  all  the 
partners  are  liable  for  the  debts  of  the  firm  to  the  extent  of  their  interest 
:n  the  joint  stock,  but  also  to  the  whole  extent  of  their  separate  property.2 

The  statutes  of  New- York  have  provided  for  a  partnership  with  a 
restricted  responsibility.  The  act  was  first  passed  in  1822.  and  was  revised 
in  1830  ;3  and  it  provides  for  the  formation  of  limited  partnerships  for 
the  transaction  of  any  mercantile,  mechanical  or  manufacturing  business, 
within  this  state,  but  not  for  the  purpose  of  banking,  or  making  insurance. 
Such  partnership  consists  of  two  or  more  persons,  one  or  more  of  whom 
are  called  general  partners,  and  are  jointly  and  severally  responsible  as 
general  partners  now  are  by  law ;  and  one  or  more  persons  who  shall 
contribute,  in  actual  cash  payment,  a  specific  sum  as  capital,  to  the  com- 
mon stock,  who  are  called  special  par/ne?'s,  and  who  are  not  liable  for 
the  debts  of  the  partnership,  beyond  the  fund  contributed  by  him  or 
them  to  the  capital.  The  general  partners  only  are  authorized  to  trans- 
act business  and  sign  for  the  partnership,  and  to  bind  the  same.  For  the 
purpose  of  forming  such  a  partnership,  the  parties  are  required  severally 
to  sign  a  certificate,  stating  the  name  or  firm  under  which  such  partner- 
ship is  to  be  conducted ;  the  general  nature  of  the  business  intended  to 
be  transacted;  the  names  of  all  the  general  and  special  partners  inter- 
ested, distinguishing  which  are  general  and  which  special  partners,  and 
their  respective  places  of  residence ;  the  amount  of  capital  which  each 
special  partner  shall  have  contributed  to  the  common  stock  ;  the  period 
at  which  the  partnership  is  to  commence,  and  terminate. <     This  certifi- 

1  Collyer  on  Part.  3.  Blanchard,  4  East.  144.     Madison  Countj' 

2  Ex  parte  Langdale,  18  Ves.  301.    Car-    v.  Gould,  5  Hill,  311. 

len  v.  Drury,  1  Ves.  &  B.  157.     Waugfa        3  L.  of  1822,  ch.  244,  p.  259.     1  R.  S 
r.   Carver,  2  II.  Bl.   235.     Ilesketh   v.    763. 

4  1  R.  S.  7f>4,  §  4. 
Eq.  Jur.  90 


714  Partnership.  [Ch.  10. 

cat«;  is  to  be  duly  acknowledged  before  a  proper  officer  and  filed  in  the 
office  of  the  clerk  of  the  county  in  which  the  principal  place  of  business 
of  the  partnership  is  situated,  and  also  recorded  at  full  length,  and  kept 
open  for  public  inspection.  If  the  partnership  has  places  of  business  in 
other  counties,  a  transcript  of  the  certificate  and  acknowledgment  must  be 
filed  and  recorded  in  like  manner  in  the  office  of  the  clerk  of  such  county 
or  counties.  At  the  same  time,  an  affidavit  of  one  or  more  of  the  general 
partners  must  also  be  filed  in  the  same  office  with  the  original  certificate, 
stating  that  the  sums  specified  in  the  certificate,  to  have  been  contrib- 
uted by  each  of  the  special  partners  to  the  common  stock,  have  been 
actually  and  in  good  faith  paid  in  cash.  If  any  false  statement  is  made 
in  the  certificate  or  affidavit,  all  the  persons  interested  in  such  partner- 
ship, are  made  liable  for  all  the  engagements  thereof,  as  general  partners. 

The  terms  of  the  partnership,  when  l'egistered,  must  be  published  by 
the  partners  for  six  weeks  immediately  after  the  registry.  In  like  man- 
ner, every  renewal  or  continuance  of  such  partnership,  beyond  the  time 
originally  fixed  for  its  duration,  must  be  certified,  acknowledged  and 
recorded,  and  an  affidavit  of  a  general  partner  be  made  and  filed,  and 
notice  be  given,  in  the  manner  required  for  its  original  formation  ;  and 
every  such  partnership  which  shall  be  otherwise  renewed  is  declared  to 
De  a  general  partnership. 

Every  alteration  made  in  the  names  of  the  partners,  in  the  nature  of 
the  business,  or  in  the  capital  or  shares  thereof,  or  in  any  other  mattei 
specified  in  the  original  certificates,  is  deemed  a  dissolution  of  the  part- 
nership. And  every  such  partnership  in  any  manner  carried  on  after 
any  such  alteration  is  deemed  a  general  partnership,  unless  renewed  as  a 
special  partnership,  according  to  the  provisions  of  the  act. 

With  regard  to  the  manner  in  which  the  business  is  to  be  carried  on, 
and  the  persons  by  whom  it  is  to  be  conducted,  it  is  provided  that  it  must 
be  in  the  name  of  the  general  partners,  and  by  them,  without  the  addi- 
tion of  "  company,"  or  any  other  general  term.  If  the  name  of  a  special 
partner  is  used  in  the  firm,  with  his  privity,  he  is  deemed  a  general 
partner. 

The  statute,  however,  permits  the  special  partner,  from  time  to  time  to 
examine  into  the  state  and  progress  of  the  partnership  concerns,  and  to 
advise  in  their  management ;  but  he  is  not  allowed  to  transact  any  busi- 
ness on  account  of  the  partnership,  or  to  be  employed  for  that  purpose 
as  agent,  attorney  or  otherwise.  By  his  interference  in  the  matter,  con- 
trary to  the  provisions  of  the  act,  he  becomes  a  general  partner. 

Though  the  special  partner  is  not  allowed  to  withdraw  any  portion  of 
the  capital  contributed  by  him,  at  any  time  during  the  continuance  of  th#» 


Ch.  10.]  Limited  Partnership.  715 

partnership,  he  is  nevertheless  permitted  annually  to  receive  lawful  inter- 
est on  the  sura  so  contributed  by  him,  if  the  payment  thereof  does  not  re 
duce  the  original  amount  of  such  capital ;  and  if  after  the  payment  of 
such  interest,  any  profits  remain  to  be  divided,  he  may  also  receive  his 
portion  of  such  profits.1 

The  partnership  is  forbidden  to  make  assignments  or  transfers,  or  cre- 
ate any  lien  with  the  intent  to  give  preference  to  creditors.  And  in 
case  of  the  insolvency  or  bankruptcy  of  the  partnership,  no  special  part- 
ner is  allowed,  under  any  circumstances,  to  claim  as  a  creditor,  until  thp 
claims  of  all  the  other  creditors  of  the  partnership  shall  be  satisfied. 

Suits  in  relation  to  the  business  of  the  partnership  are  brought  and 
conducted,  by  and  against  the  general  partners,  in  the  same  manner  as  if 
there  were  no  special  partners.2  This  provision  it  is  presumed  is  still 
in  force,  notwithstanding  the  code,  which  as  a  general  rule  requires  the 
action  to  be  prosecuted  in  the  name  of  the  real  party  in  interest.  It  falls 
within  the  exception.3 

If  the  parties  desire  to  dissolve  the  partnership,  before  the  time  admit- 
ted for  that  purpose  in  the  certificate  of  its  formation,  they  must  cause  a 
notice  of  such  dissolution  to  be  published  for  four  weeks,  in  a  newspaper 
printed  in  each  of  the  counties  where  the  partnership  may  have  places  of 
business,  and  in  the  state  paper.  But  such  notice  is  not  necessary  to  be 
given,  when  the  partnership  expires  by  the  limitation  of  the  original 
certificate.4 

To  enable  a  special  partner  to  escape  from  the  liability  of  a  general 
partner,  he  must  see  that  the  provisions  of  the  law  have  been  strictly 
complied  with,  and  that  he  has  not  violated  any  of  the  requirements  of 
the  law,  in  meddling  with  the  concerns  of  the  partnership.5 

It  would  seem  that  the  general  partners  cannot,  in  case  of  insolvency, 
make  an  assignment  of  all  the  partnership  effects  to  a  trustee  for  the  pay- 
ment of  the  partnership  debts  ratably  or  otherwise  ;  unless  provision  is 
made  for  such  assignment  in  the  articles  of  copartnership.6  The  implied 
authority  arising  from  the  ordinary  contract  of  copartnership,  does  not 
authorize  one  of  the  partners,  without  the  assent  of  his  copartners,  to 
make  a  general  assignment  of  the  copartnership  effects  to  a  trustee  for 
the  benefit  of  creditors,  and  giving  preferences  to  one  class  of  creditors 
over  another.7     The  special  partners,  it  would  seem,  should  unite  in  the 

1  1  R,  S.  764,  §  15.  309.   Smith  v.  Argall,  6  id.  179  ;  affirmed 

■  Id.  §  14.  3  Denio,  435.    Brown  v.  Argall,  24Wend. 

*  Code,  §§  111,  113.  496. 

'  Haggerty  v.  Taylor,  10  Paige,  262.  6  Mills  v.  Argall,  6  Paige,  682. 

*  Madison  Co.  Bank  v.  Gould,  5  Hill,        '  Havens  v.  Ilussey,  o  Paige,  31. 


716  Partnership  [Cb.  10 

general  assignment  to  make  it  effectual,  -where  no  provision  has  been 
made  for  it  in  the  articles. 

The  business  of  the  firm  is  conducted  by  the  general  partners  alone,  and 
they  or  any  one  of  them  may,  during  the  continuance  of  the  partnership, 
transfer  so  much  of  the  partnership  effects  in  the  name  of  the  firm,  as 
may  be  sufficient  for  that  purpose,  to  one  or  more  creditors  of  the  firm,  in 
payment  of  their  debts.  The  principle  upon  which  such  assignment  is 
upheld  is,  that  there  is  an  implied  authority  for  that  purpose,  from  the 
copartners,  from  the  very  nature  of  the  copartnership  ;  the  payment  of 
the  company  debts  being  always  a  part  of  the  necessary  business  of  the 
firm.  But  it  is  no  part  of  the  ordinary  business  of  a  copartnership,  to 
appoint  a  trustee  of  all  the  partnership  effects,  for  the  purpose  of  selling 
and  distributing  the  proceeds  among  the  creditors  in  unequal  proportions.1 

The  statute  evidently  treats  the  property  of  a  limited  partnersnip, 
after  insolvency,  as  a  trust  fund,  for  the  benefit  of  all  the  creditors ;  and 
if  the  partners  neglect  to  place  it  in  the  hands  of  a  proper  and  responsi- 
ble trustee,  to  be  distributed  without  delay  among  the  creditors,  other 
than  the  special  partners,  any  creditor  may  proceed  at  once  in  equity,  for 
the  appointment  of  a  receiver  and  a  distribution  of  the  fund.2 

Though  an  agreement  in  writing  be  necessary  to  constitute  a  special 
partnership,  according  to  the  statute,  and  a  strict  conformity  to  the  pro- 
visions of  the  act  be  necessary,  in  order  to  restrict  the  responsibility  of 
the  special  partners  to  the  extent  of  their  funds  put  into  the  concern,  yet 
a  copartnership  may  be  formed  between  parties,  by  parol,  and  without 
any  written  contract,  when  the  copartnership  is  to  take  effect  immedi- 
ately.3 The  mere  consent  of  the  parties,  evidenced  by  their  acts  or 
words,  is  all  that  is  required  for  this  purpose.  If,  however,  an  agreement 
be  made  to  enter  into  a  partnership,  at  a  future  day,  after  the  expiration 
of  a  year,  it  has  been  doubted  whether  the  agreement  could  be  enforced 
unless  it  was  reduced  to  writing  and  subscribed  by  the  parties.4  And  it 
is  no  objection  to  the  formation  of  the  partnership,  by  parol,  that  one  of 
the  declared  objects  of  the  copartnership  is  to  purchase  real  estate  for 
the  purposes  of  the  firm,  and  as  a  site  for  the  transaction  of  its  business. 
Such  real  estate,  purchased  with  partnership  funds  for  the  use  of  the 

1  Havens  v.  Hussey,  5  Paige,  31.  Eg-  3  Smith  v.  Tarlton,  2  Barb.  Ch.  K.  336. 
bert  v.  Wood,  3  id.  517.  Harrison  v.  Featherstonhaugh  v.  Fenwick,  17  Yes. 
Sterry,  5  Cranch,  300.  298. 

2  Innes    v.    Lansing,    7    Paige,    583.  4  Smith  v.  Tarlton,  supra.     2  R.  S.  13£ 
Whitewright  v.  Stimpson,  2  Barb.  S.  C.  §  2. 
R  87<*. 


Ch.  10.J  Dissolution  of  Partnership.  717 

firm,  in  whose  name  the  conveyance  is  taken,  is  in  equity  considered  the 
property  of  the  firm  for  the  payment  of  its  debts,  and  for  the  purpose 
of  adjusting  ths  equitable  claims  of  the  copartners  between  themselves.1 

Though  it  )3  not  the  object  of  this  chapter  to  treat  of  the  subject  of 
partnership  at  large,  but  merely  to  notice  some  of  the  cases  in  which  the 
interference  of  equity  is  indispensable  for  complete  justice,  yet  it  is  proper 
*.o  add  that  the  acts  of  a  majority  of  the  partners  bind  the  rest.2  In 
general  one  partner  cannot  bind  his  copartners  by  seal,  without  special 
authority  for  that  purpose,  and  the  authority  maytbe  by  parol.3  This 
rule  applies  only  to  cases  where  an  obligation  is  sought  to  be  created; 
but  one  partner  may,  in  the  name  of  the  firm,  make  a  valid  release  under 
seal,  of  a  debt  due  to  the  partnership.4  This  is  upon  the  principle  that 
each  p^*•tner  has  a  right  to  receive  the  debt,  and  of  course  his  individual 
receipt,  or  release,  would  be  evidence  of  such  payment.  The  release  of 
one  joint  obligee  bars  his  companion.5 

Partners  may  bind  themselves  by  a  private  agreement  concerning  the 
partnership  business.6  But  an  agreement  between  them  that  neither 
-shall  make  a  contract  to  charge  the  others,  will  not  affect  strangers  hav 
ing  no  notice  of  it.7 

It  is  mainly  after  the  dissolution  or  insolvency  of  a  partnership  that 
the  interference  of  a  court  of  equity  becomes  necessary  to  settle  and  ad- 
just the  equities  of  the  partners  amongst  themselves,  as  well  as  the  equi- 
ties of  creditors  of  individual  partners,  to  the  share  of  their  debtor  in 
the  copartnership  effects. 

The  partnership  may  be  dissolved  in  a  variety  of  ways.  It  may  ex- 
pire by  its  own  limitation.  It  may  be  dissolved  by  the  act  of  either  part- 
ner, without  previous  notice,  where  the  partnership  is  formed  without 
written  articles,  restraining  the  party  from  this  exercise  of  his  authority.8 
It  may  be  dissolved  by  the  death,  insanity  or  bankruptcy  of  one  or  more 
of  the  partners  ;9  by  the  breaking  out  of  war  between  two  countries, 
when  the  members  of  the  firm  thus  become  subjects  of  hostile  govern- 

1  Smith  v.  Tarlton,  supra.  6  Ruddock's  case,  6  Co.  25.     Buren  v. 

a  Kirk  v.  Hodgson,  3  J.  Ch.  200.     Wil-  Marquand,  17  J.  R.  58. 

kim  v.  Pearce,  5  Denio,  541.  6  Gould  v.  Banks,  8  Wend.  562. 

'  Green  v.  Reals.  2  Cai.  254.     Clement  7  Tradesman's  Batik  v.  Astor,  11  Wend. 

v.  Brush,  3  J.C.I  80.    Skinner  v.  Dayton,  87. 

5  J  Ch.  R.  351 ;  S.  C.  19  J.  R.  513.  8  Featherstonhaugh  v.Fenwick,  17  Yes. 

4  Pierson  v.  Hooker,  3  J.  R.  68.     Bulk-  298. 

ley  v.  Dayton,  14  J.  R.  387.  '  Griawold  v.  Waddiagton,  16  J.  R.  57 \ 

S.  C.  affirm,  in  error,  16  id.  438. 


718  Partnership.  [Oh.  10, 

merits,'  and  by  the  conviction  of  one  of  the  partners  of  a  capital  offense.9 
It  has  been  held  that  the  marriage  of  a  feme  sole  partner  is  a  dissolution 
of  a  partnership  at  will.3  So  also  a  bona  fide  assignment  by  one  of  sev 
eral  partners,  of  all  his  interest  in  the  copartnership  stock,  ipso  facto, 
dissolves  the  copartnership,  though  one  of  the  articles  expressly  provides 
that  the  copartnership  is  to  continue  until  two  of  the  contracting  parties 
should  demand  a  dissolution,  and  the  other  partners  were  desirous  to  have 
it  continue,  notwithstanding  the  assignment.4  Such  assignment  operates 
as  a  severance  of  the  interest  of  the  partners.  A  partner  cannot,  with- 
out the  consent  of  his  copartners,  introduce  a  third  person  as  a  partner 
into  the  concern.5 

But  though  the  partnership  be  dissolved,  it  nevertheless  subsists  for 
the  purposes  of  closing  up  the  concern  ;  and  if  one  thereafter  die,  the  other 
takes  the  property  and  books  as  survivor,  subject  to  account  to  the  per- 
sonal representatives  of  the  deceased.6  Surviving  partners,  it  has  already 
been  said,  are  in  equity  trustees 'of  the  partnership  effects,  and  cannot 
derive  any  exclusive  profit  from  their  use.7  They  may  carry  on  a  joint 
business  in  the  name  of  the  late  firm,  or  in  any  other  name,  and  limit  it 
to  winding  up  the  business  of  the  late  firm,  or  carry  on  the  business  gen- 
erally.5 They  are  entitled  to  close  up  the  concern,  and  equity  will  not 
appoint  a  receiver  and  deprive  them  of  this  right,  if  they  are  responsible 
and  act  in  good  faith.9  And  the  bare  fact  that  the  survivor  resides 
abroad  is  no  reason  for  interfering  with  the  exercise  of  this  right  through 
a  competent  agent. 

"With  respect  to  third  persons,  the  liability  of  the  partners  continues 
until  notice  of  the  dissolution,  unless  the  dissolution  be  occasioned  by  the 
death  of  one  of  the  partners.  Notice  of  the  dissolution  in  the  newspapers 
is  sufficient  notice  to  all  persons  who  have  no  previous  dealings  with  the 
firm ;  but  persons  who  have  had  previous  dealings  with  the  firm  are  not 
affected  by  such  notice,  but  they  are  entitled  to  actual  notice.10 

Upon  the  dissolution  of  a  partnership  in  any  Way,  and  especially  in 
case  of  insolvency,  the  intervention  of  a  court  of  equity  to  take  an  account 

1  Seaman  v.  Waddington,  16  J.  R.  510.  '  Case  v.  Abeel,  1  Paige,  393. 

1  2  R.  S.  701,  §  20.  8  Staats  v.  Howlett,  4  Denio,  559. 

*  Nerot  v.  Bnrnand,  4  Russ.  260.  '  Evans  v.  Evans,  9  Paige,  178. 

*  Marquand  v.  The  N.  Y.  Manufacturing  ]0  Graves  v.  Merry,  6  Cowen,  771.  Na- 
Co.  17  J.  R.  525.  tional  Bank  v.  Norton,  1  Hill,  572.    Van 

»  Murray  v.  Bogert,  14  J.  R.  318.  Epps  v.  Dillaye,  6  Barb.  244.     Ward  well 

*  Murray  v.  Mumford,  6  Cowen,  441.       v.  Haigbt,  2  Barb.  S.  C.  R.  549. 


Ch.  10.J  Surviving  Partner.  71  ^ 

of  the  copartnership  transactions,  becomes  the  most  available  remedy. 
The  partnership  effects,  in  cases  of  insolvency,  are  treated,  in  equity,  as 
a  trust  fund  for  the  payment  of  the  copartnership  debts,  and  they  will  be 
so  applied  upon  the  application  of  either  of  the  partners.1  They  must 
first  be  applied  to  the  payment  of  the  partnership  debts ;  and  the  indi- 
vidual property  of  the  partners  to  their  individual  debts.2 

But  when  the  copartners  are  administering  their  own  funds,  the  co- 
partnership creditors  have  no  specific  or  preferable  lien  upon  the  joint 
funds ;  nor  have  the  individual  creditors  any  lien  or  priority  of  claim 
upon  the  separate  property  of  their  debtors.  It  is  only  when  neither  the 
joint  nor  the  separate  creditors  of  the  persons  composing  the  firm  can 
reach  the  property  of  their  debtors,  so  as  to  obtain  satisfaction  by  execu- 
tion at  law,  that  the  equitable  principle  is  applied,  of  paying  joint  cred- 
itors out  of  the  partnership  property,  and  individual  creditors  out  of  the 
separate  property  of  their  debtor ;  when  there  is  not  enough  to  pay  both.3 

While  the  partners  have  the  legal  control  of  their  property,  they  may 
distribute  it  as  they  see  fit  among  all  their  creditors,  provided  they  deal 
justly  by  all.  Hence,  they  may  assign  their  individual  property  as  well 
as  their  partnership  property  to  pay  the  joint  debts  of  the  firm  ;  thereby 
giving  the  creditors  of  the  firm  a  preference  in  payment  out  of  the  sepa- 
rate estate  of  the  assignors,  over  the  separate  creditors.  And  each  part- 
ner, with  the  assent  of  his  companions,  has  the  corresponding  right  to 
give  his  individual  creditors  a  preference  in  payment  out  of  the  share  of 
the  effects  of  the  firm,  which  as  between  him  and  his  copartners,  and 
without  reference  to  the  debts  for  which  they  are  all  jointly  liable,  is 
legally  his  own  property.  But  a  partner  who  is  insolvent  and  unable  to 
pay  the  debts  of  the  firm,  has  no  right  to  assign  his  share  of  the  partner- 
ship effects  to  pay  the  individual  debts  of  his  copartner,  for  which  neither 
he  nor  his  property  is  legally  or  equitably  liable.4 

Though  tbo  law  casts  upon  the  surviving  partner  the  burthen  of  dis- 
charging all  the  partnership  debts,  and  vests  in  him  the  partnership 
assets  for  that  purpose,  still,  if  he  is  insolvent,  equity  will  aid  the  cred- 
itors of  the  firm  in  obtaining  satisfaction  out  of  the  property  of  the 
deceased  copartner.6     But  as  long  as  the  surviving  partner  is  of  sufficient 

'  Egberts  v.  Wood,  517.  508.     Wilder  v.  Keeler,    3  Paige,    102 

1  Wilder  v.  Keeler,  3  Paige,  107.   Kirby  Brown  v.  Story,  2  id.  594.     Butts  v.  Gen- 

v.  Scboonmaker,  3  Barb.  Ch.  R.  46.  ung,  5  id.  254.     Payne  v.  Mathews.  6  id. 

'  Kirby  v.  Scboonmaker,  3  Barb.  Ch.  19.     Lawrence  v.  Tbe  Trustees  of  Leake 

R.  46.  Orphan  House,  2  Denio,  577.     11  id.  80 

*  Id.  Smith  v.  Ballantine,  10  id.  101. 

•  namereley  v.  Lambert,  2  J.  Ch.  R. 


720  Partnership.  [Ch.  10. 

ability  to  pay,  there  is  no  failure  of  the  remedy  at  law,  and  no  occasion 
for  the  extraordinary  aid  of  a  court  of  equity.  The  weight  of  authority, 
in  this  state,  is  that  the  creditor  must  resort  to  his  legal  remedy  against 
the  surviving  debtors,  unless  he  can  show  some  ground  of  necessity  for 
coming  into  equity  for  relief  against  the  estate  of  the  deceased  debtor.1 

In  England  a  different  rule  at  present  seems  to  prevail.  Treating  a 
partnership  <?3bt  as  joint  and  several,  the  courts  there  hold  that  the 
creditor  may  resort  at  once  to  the  estate  of  the  deceased  partner,  making 
the  surviving  partner  a  party  defendant  to  the  action,  without  averring 
or  proving  the  insolvency  of  the  surviving  partner.2  Bu*t  the  chancellor 
refused  to  follow  these,  and  a  few  other  recent  English  cases,3  holding 
that  the  law  was  otherwise  conclusively  settled  in  this  state,  in  conformity 
to  the  earlier  English  doctrine.4 

A  question  of  great  difficulty  and  importance  arises,  upon  a  sale  by  a 
creditor  under  a  judgment  and  execution  against  one  partner,  whether 
only  the  interest  of  the  partner  defendant  in  the  execution  is  to  be  sold, 
)r  whether  the  property  itself  is  to  be  sold  and  delivered  to  the  purchaser, 
the  latter  taking  the  place  of  the  partner  whose  share  has  been  sold.  It 
is  well  settled  that  the  interest  of  one  partner  in  the  partnership  prop- 
erty, is  only  his  share,  after  a  settlement  of  the  partnership  accounts,  and 
satisfaction  of  all  just  claims  of  the  other  partners.5  No  greater  interest 
can  be  sold  under  an  execution  against  the  partner  than  he  possesses. 
The  difficulty  consists  in  the  selling  of  an  uncertain  interest.  Lord  El- 
don,  on  one  occasion  said,  if  courts  of  law  have  followed  courts  of  equity 
in  giving  execution  against  partnership  effects,  they  do  not  adhere  to  the 
principle,  when  they  suppose  that  the  interest  can  be  sold  before  it  has 
been  ascertained  what  is  the  subject  of  sale  and  purchase.  According  to 
the  law  before  Lord  Mansfield's  time,  the  sheriff,  under  an  execution 
against  partnership  effects,  took  the  undivided  share  of  the  debtor,  with- 
out reference  to  the  partnership  account ;  but  a  court  of  equity  would 
have  set  that  right,  by  taking  the  account,  and  ascertaining  what  the 
sheriff  ought  to  have  sold.     The  courts  of  law,  however,  have  now  repeat- 

1  See  cases  cited  in  last  note.  wicke,  cited  in  2  Ves.  101.    Jenkins  v. 

a  Devaynes  v.  Noble,  2R.&  Myl.  495.  Groot,  1  Cai.  0.  E.  121.    See  English 

Wilkinson  v.  Henderson,  1  Myl.  &  K.  rule  stated  under  the  head  of  Fraud,  ante, 

582,  and  see  the  cases  on  p.  719.    See  p.  191. 
ante,  under  head  of  Fraud.  *  Nicoll  v.  Mumford,  4  J.  Ch.  R.  522. 

•The  Trustees,  &c.  v.  Lawrence,   11  Rodriguez  v.  Heffernan,  5  id.  417.  Buchan 

Paige,  85.  v.  Sumner,  2  Barb.  Ch.  R.  165. 

4  Simpson  v.  Vaughn,  by  Lord  Hard- 


Ch.  10.]  Sale  of  Partnership  Interest.  721 

edly  la i<l  down,  that  they  will  sell  the  actual  interest  of  the  partner,  pro- 
fessing to  execute  the  equities  between  the  parties  ;  but  forgetting  that 
a  court  of  equity  ascertained  previously  what  was  to  be  sold.  How  could 
a  court  of  law  ascertain  what  was  the  interest  to  be  sold,  and  what  the 
equities,  depending  upon  an  account  of  all  the  concerns  of  the  partners 
for  years  ?' 

In  England  it  is  the  law  that  the  creditor  of  any  one  partner  may  take 
in  execution  that  partner's  interest  in  all  the  tangible  property  of  the 
partnership.2  And  it  was  laid  down  by  Holt,  at  an  early  day,  that  in  an 
action  against  one  of  two  or  more  partners,  the  sheriff  must  seize  all  the 
goods,  because  the  moieties  are  undivided;  for  if  he  seize  but  a  moiety 
and  sell  that,  the  other  will  have  a  right  to  a  moiety  of  that  moiety  ;  but 
he  must  seize  the  whole,  and  sell  a  moiety  thereof  undivided,  and  the 
vendee  will  be  tenant  in  common  with  the  other  partner.3 

The  moment  the  interest  of  one  of  the  partners  is  seized  under  an  exe- 
cution against  him  for  his  individual  debt,  the  partnership  in  the  goods 
so  seized  is  at  an  end ;  and  the  creditor  becomes  a  tenant  in  common  with 
the  other  partner.  And  when  the  goods  are  sold  the  vendee  becomes  ten- 
ant in  common  in  like  manner.* 

The  difficulty  and  embarrassment  arising  from  the  sale  of  an  uncertain 
interest,  necessarily  leading  to  a  bill  in  equity  for  an  account,  induced 
Lord  Mansfield  to  direct  a  reference  to  the  master  in  cases  of  this  kind, 
in  order  to  ascertain  the  actual  interest  of  the  debtor  partner  before  the 
gale  ;  and  to  require  the  sheriff  to  levy  no  more  than  the  interest  of  such 
partner.5  This  case  was  followed  by  Lord  Kenyon  in  a  subsequent  case.6 
But  this  mode  of  ascertaining  the  interest  of  the  debtor  partner  was 
afterwards  abandoned,  from  the  extreme  difficulty  of  taking  an  account  at 
law.7  If  the  partnership  be  of  long  continuance,  or  complicated  in  its 
nature,  it  is  quite  obvious  that  a  satisfactory  account  can  only  be  taken 
in  equity.  Accordingly  the  practice  in  England  seems  to  be,  when  the 
separate  creditor  of  one  partner  has  taken  partnership  goods  in  execution, 
in  discharge  of  his  separate  debt,  for  the  other  partners  to  file  their  bill 
against  the  creditor,  the  debtor  partner  and  the  sheriff,  praying  for  an 
account  of  the  partnership,  and  payment  of  what  is  due  to  them,  and  that 

1  Waters  v.  Taylor,  2  Yes.  &  B.  301,  per  4  Yes.  396.     3  C.  &  P.  306.     Marquaml 

Lord  Eldon.  v.  N.  Y.Manu.  Co.  17  J.  R.  525.     Walsh 

1  Per  Lord  Alvanly,  3  B.  &  Pull.  289.  v.  Adams,  3  Denio,  7. 

•  LTeydon    v.    Heydon,    1    Salk.    392.  '  Edie  v.  Davidson,  Doug.  650. 

Jacky  v.  Butler,  2  Ld.  Ray.  871.  *  See  the  case  as  stated  by  Best,  Serj.  in 

4  Fox  v.  Banbury,  Cowp.449.     Skip  v.  Parker  r.  Pistor,  3  £.  &  PalV.  OS8. 

ITarwood.  2  Swanst.  586.     Field  v. ,  *  Chapman  v.  Koops,  3  IS.  &  P.  2Si>. 

Kq.  Jhr  ni 


722  Partnership.  [Ch.  10 

the  sheriff  may  be  restrained  from  proceeding  under  the  execution  and 
selling  the  stock  and  effects  ;  and  a  court  of  equity  will  give  relief  accord- 
ingly.1 

If  in  cases  of  this  nature,  execution  be  executed  before  an  injunction 
can  be  obtained,  the  court  will  stay  the  money  in  the  hands  of  the  sheriff, 
until  the  account  can  be  taken.'  Under  this  doctrine  the  sale  does  not 
in  truth  transfer  any  part  of  the  joint  property  to  the  vendee,  so  as  to 
enable  him  to  take  it  from  the  other  partners.  It  gives  him  merely  a 
ri^ht  in  equity  to  call  for  an  account,  and  thus  to  entitle  him  to  the  inter 
est  of  the  partner  in  the  property,  which  on  the  settlement  of  the  account, 
shall  be  ascertained  to  exist.  It  is  clear  sueh  an  account  can  only  be 
taken  in  a  court  of  equity. 

There  are  some  of  the  New- York  cases,  which  incline  to  adopt  the  same 
rule.  Thus,  where  an  attachment  had  issued  under  the  act  for  relief  against 
absent  and  absconding  debtors,3  against  one  partner  for  his  individual 
debt,  the  partner  having  absconded,  and  thus  become  liable  to  the  process 
of  attachment  under  the  act,  the  court  upon  a  motion  to  discharge  the 
attachment  which  had  been  levied  upon  the  property  of  the  copartner- 
ship, directed  the  property  so  seized  to  be  restored.4  The  court  in  dis- 
posing of  the  motion  said  :  where  an  execution  is  issued  for  the  separate 
debt  of  one  partner,  it  has  been  the  constant  practice  to  take  the  shares 
which  such  partner  has  in  the  partnership  property,  but  it  has  been  set- 
tled, at  least  since  the  case  of  Fox  v.  Hanbury,  (Cowp.  445,)  that  the 
sheriff  can  sell  only  the  actual  interest  which  such  partner  has  in  the 
partnership  property  after  the  accounts  are  settled,  or  subject  to  the  part- 
nership debts.  The  separate  creditor  takes  it  in  the  same  manner  as  the 
debtor  himself  had  it,  and  subject  to  the  rights  of  the  other  partner. 
The  sheriff,  therefore,  does  not  seize  the  partnership  effects  themselves, 
for  the  other  partner  has  a  right  to  retain  them,  for  the  payment  of  the 
partnership  debts.  And  elsewhere,  in  the  same  opinion,  after  putting  an 
attachment  upon  the  footing  of  an  execution,  they  say,  "the  aheriff  can 
take  the  separate  property  only,  of  the  absconding  debtor.  He  cannot 
seize  the  partnership  effects,  for  the  other  partner  has  a  right  to  retain 
and  dispose  of  them,  for  the  payment  of  the  partnership  debts."5 

Shortly  before  the  case  of  Ex  parte  Smith,  in  the  supreme  court,  Chan- 
cellor Kent  held  that  the  interest  of  one  partner  in  the  partnership  prop- 

1  Coll.  on  Part.  478.     1  Mad.  Ch.  Pr.        "  Coll.  on  Part.  478. 
112.  Bevan  v.  Lewis,  1  Sim.  376.  Lownes        '  1  K.  L,  of  1813,  p.  157. 
v.  Taylor,  1  Mad.  Ch.  R.  422.     Taylor  v.        *  Matter  of  Smith,  16  J.  R.  102. 
Fields,  4  Ves.  396.     Young  v.  Eeighly,        6  Matter  of  Smith,  supra,  and  not©  to 

15  id.  563.  that  case. 


Cli.  10.]  Sale  gf  Partnership  Interest.  723 

erty  might  be  taken  and  sold  under  an  execution  at  law,  on  a  judgment 
against  such  partner  for  his  separate  debt;  and  that  a  court  of  equity 
would  not  stop  such  execution  or  sale  by  injunction,  to  enable  the  part- 
nership accounts  to  be  taken  and  liquidated.1  He  said  the  principle  would 
go  to  stay  executions  at  law  in  every  case,  against  the  partnership  prop- 
erty of  one  partner  who  owed  separate  debts,  until  the  disclosure  arid 
liquidation  of  the  copartnership.  This  would  produce  inconceivable  de- 
lay and  embarrassment,  in  respect  of  the  separate  creditors.  If  those 
creditors  can  sell  only  subject  to  the  joint  creditors,  there  is  no  harm  in 
suffering  them  to  go  on  at  law  ;  and  if  any  sacrifice  of  the  interest  of  the 
separate  partner  is  made  by  reason  of  the  uncertainty,  it  affects  only 
that  partner  who  does  not  here  raise  the  objection.  But  this  case  did 
not  present  the  question  whether  the  property  of  the  partnership  itself 
might  be  sold  and  delivered  to  the  vendee,  subject  to  an  account,  or 
whether  only  the  interest  of  the  partner  might  be  sold,  without  disturb- 
ing the  possession  of  the  other  partner. 

But  whatever  may  have  been  the  opinion  of  the  chancellor  on  that 
question,  it  has  since  been  set  at  rest  in  this  state.  The  principle  is 
now  stated  to  be,  that  on  an  execution  against  one  of  two  partners,  the 
sheriff  may  seize  the  entire  partnership  effects,  or  so  much  as  may  be 
necessary  to  satisfy  the  execution,  and  sell  the  interest  of  the  partner 
against  whom  the  execution  is  issued,  and  deliver  the  property  so  sold 
t<  the  purchaser,  against  the  will  of  the  other  partner  ;  and  the  other 
partner  cannot  maintain  an  action  against  the  sheriff  for  such  sale  and 
delivery.2  It  is  conceded,  however,  that  the  purchaser  takes  subject  to 
an  account  between  the  partners,  and  to  the  equitable  claims  of  the  cred- 
itors of  the  firm  in  the  name  of  the  other  partner. 

In  the  case  of  Phillips  v.  Cook,  (supra,)  the  plaintiff  claimed  as  assignee 
of  the  partners  for  the  benefit  of  the  creditors  generally,  and  the  action 
was  brought  in  trespass  de  bonis  asporlalis,  against  the  defendant,  a 
deputy  sheriff,  for  taking  and  selling  the  goods  under  an  execution  against 
one  of  the  partners,  for  an  individual  debt  of  such  partner.  The  court 
treated  the  action  as  if  it  had  been  brought  by  the  partners,  it  being 
brought  by  trustees  claiming  under  an  assignment  made  subsequent  to 
the  levy.  The  court  held  that  the  action  could  not  be  maintained.  They 
said  that  at  law,  the  sheriff  may  seize  and  sell  the  interest  of  a  partner 
in  all  choses  in  possession,  the  same  as  he  may  that  of  any  joint  tenant 
or  tenant  in  common.  They  adopt  the  language  of  Holt,  Ch.  J.,  in  Pope 
v.  Hainan,  (Comb.  217  :)  "  Upon  a  judgment  against  one  partner,  the  sher 

Mody  v.  Payn,  2  J.  Ch.  II.  54S.  '  Phillips  v.  Cook,  24  Wend,  389. 


724  Partnership.  [Ch.  10 

iff  may  take  the  goods  of  both  in  execution  ;  and  the  other  panner  hath 
no  remedy  at  law,  otherwise  than  by  retaking  the  goods,  if  he  can ;  for 
the  vendee  of  the  sheriff  becomes  tenant  in  common  with  the  other  co- 
partner." The  whole  subject  and  the  cases  in  this  country  arc  exten- 
sively reviewed  by  the  learned  judge  who  delivered  the  opinion  in  tho 
case  under  consideration.  The  doctrine  is  put  upon  common  law  princi- 
ples, and  not  upon  any  change  introduced  by  statute. 

In  an  earlier  case,  Savage,  Ch.  J.,  while  he  held  that  trespass  or  replevin 
would  not  lie  against  a  sheriff  for  a  levy  under  such  circumstances,  seem- 
ed to  think  that  the  court  from  which  the  execution  issued  would  stay 
proceedings  upon  it  to  give  time  to  have  an  account  taken  in  equity.1 

The  doctrine  of  Phillips  v.  Cook  has  been  repeated  in  numerous  other 
cases,  and  is  the  settled  law  in  this  state.  Thus,  in  quite  a  recent  case, 
Jewett,  J.,  in  delivering  the  opinion  of  the  court  said,  he  considered  it 
well  settled  that  upon  an  execution  against  one  of  several  partners,  the 
sheriff  may  take  the  goods  of  the  partnership  in  execution,  and  sell  the 
individual  share  or  interest  of  the  defendant,  and  in  doing  so,  he  may 
take  possession  of,  remove  and  deliver  the  entire  property  taken,  to  Ins 
vendee.  When  the  goods  are  so  sold  -by  the  sheriff,  the  purchaser  be- 
comes a  tenant  in  common  with  the  other  partners.  He  is  entitled  not 
to  the  goods  of  the  partnership,  but  to  the  interest  in  the  goods  of  the 
partner  against  whom  the  execution  was,  encumbered  with  the  joint  debis 
of  the  partnership,  and  subject  to  account  for  the  full  value  in  favor  of 
partners,  and  through  them  to  creditors.  Neither  party  has  any  thing 
separately,  in  the  corpus  of  the  partnership  effects ;  but  the  interest  of 
each  is  only  the  share  of  what  remains  after  the  partnership  accounts  are 
taken.  The  accountability  of  the  purchaser  does  not  depend  in  such 
case,  on  the  fact  of  notice.  No  greater  interest  can  be  sold  than  the 
judgment  debtor  possessed.2 

But  though  the  sheriff  may,  under  an  execution  against  one  partner, 
take  the  actual  possession  of  the  partnership  goods,  and  deliver  the  pos- 
session to  the  vendee  after  the  sale,  he  cannot  sell  the  interest  of  the 
other  partners,  not  named  in  the  execution  Should  the  officer  in  such 
a  case,  assume  to  sell  the  whole  property,  he  would,  it  seems,  be  liable 
to  an  action,  at  the  suit  of  the  partner  not  a  party  to  the  execution,  but 
the  debtor  partner  cannot  be  joined  in  such  action.3 

1  Scrugan  v.  Carter,  12  Wend.  184.  s  Waddeli  v.  Cook,  2  Hill, 47,  and  note 

*  Walsh  v.  Adams,  3  Denio,  125,  128.  a,  overruling  Messereau  v.  Norton,  15  J. 

Ex  parte  King,  17  Ves.  115.     Church  v.  E.  179.     See  also  White  v.  Osborn,  21 

Knox,  2  Conn.  R.  523.     Burrallv.  Acker,  Wend.  72. 

23   ..'end.  606. 


Ch.  10  j  Sale  op  Partnership  Interest.  725 

The  apparent  discrepancy  in  the  New- York  cases  was  attempted  to  be 
reconciled  by  Cowen,  J.,  in  Phillips  v.  Cook,  (supra,)  by  the  fact  that  in 
Smith's  case,  (16  J.  R.  102,)  the  question  arose  upon  a  special  motion, 
addressed  to  the  equity  powers  of  the  court;  and  that  the  question  in 
Wilson  v.  Conine,  (2  J.  R.  280,)  arose  upon  a  motion  for  a  new  trial 
upon  a  case,  addressed  to  the  equity  of  the  court,  and  was  decided,  there- 
fore, according  to  the  rule  prevailing  in  chancery,  and  not  according  to 
the  rule  prevailing  in  courts  of  law.     There  is  force  in  these  suggestions. 

What  effect  upon  this  question,  the  union  and  blending  of  law  and 
equity  in  the  same  court  will  have,  has  not  yet  been  settled.  There  can 
be  less  objection  now,  than  under  the  eld  practice,  to  stay  a  sale  on  an 
execution  against  one  partner,  until  the  copartnership  accounts  are  taken, 
as  was  suggested  by  Savage,  Ch.  J.,  in  Scrugan  v.  Carter,  (supra,)  to 
be  the  true  course.  One  court  would  not  now  be  waiting  the  action 
of  another  court.  But  the  whole  proceeding  being  in  the  same  court, 
could  be  so  moulded  as  to  ascertain  the  exact  interest  applicable  to  the 
execution,  with  the  least  possible  delay. 

In  a  case  in  the  court  of  errors,  about  the  time  the  case  of  Phillips 
v.  Cook  was  decided  by  the  supreme  court,  the  chancellor  said  that  the 
interest  of  a  copartnership  in  the  partnership  goods  might  be  levied  upon 
and  sold,  and  that  after  the  levy  and  previous  to  the  sale,  the  sheriff  is 
authorized  to  take  a  joint  possession  with  the  other  members  of  the  firm  ; 
but  the  case  did  not  call  for  a  decision,  nor  did  he  decide,  whether  the 
sheriff  could,  in  such  a  case,  take  the  exclusive  possession.1  The  chan- 
cellor adverted  to  the  fact,  that  the  revised  statutes  had  authorized  a 
special  interest  in  personal  property  to  be  sold  on  execution,  but  he, 
nevertheless,  spoke  of  the  sale  of  the  interest  of  a  copartner  in  the 
partnership  effects  on  an  execution  against  him  alone,  as  justified  upon 
common  law  principles. 

The  question  as  to  the  construction  of  the  New- York  statute  relative 
to  the  sale  of  personal  property  on  execution,  and  especially  of  the  sale 
of  a  'right  and  interest  of  a  party  in  such  property,  has  been  decided  by 
the  supreme  court,  and  affirmed  by  the  court  of  appeals,  on  an  equal 
division  of  the  members.  Thus,  at  common  law,  goods  pawned  or  pledged, 
fire  not  liable  to  be  taken  in  execution  in  an  action  against  the  pawnor 
'  or  pledgor.*2  The  New-York  Revised  Statutes  enact,  that  where  goods 
or  chattels  shall  be  pledged  for  the  payment  of  money  or  the  perform- 


1  Burrall  v.  Aokar,  23  Wend.  610.  4   Cowen,   461.     Poniroy  v.   Smith,  17 

*  Stief  v.  Hart,  1  Oomst.  20,  28.    "Wilkes    Pick.  85.     Story  on  Bailment.  §  353.  Otic 
v.  Ferris,  5  J.  R.  330.     \Tarsh  v.  Lawrence,     v.  Wood,  3  Wend.  500. 


726  Partnership.  [Ch.  10. 

ance  of  any  contract  or  agreement,  the  right  and  interest  in  such  goods 
of  the  person  making  such  pledge,  may  be  sold  on  execution  against  him 
and  the  purchaser  shall  acquire  all  the  right  and  interest  of  the  defend 
ant,  and  shall  be  entitled  to  the  possession  of  such  goods  and  chattels,  on 
complying  -with  the  terms  and  conditions  of  the  pledge.1 

In  Stief  v.  Hart,  the  question  arose,  whether  the  sheriff  holding  an 
execution  against  the  pledgor  of  goods,  might  by  virtue  thereof  take  the 
property  pledged  out  of  the  hands  of  the  pledgee  into  his  own  possession, 
and  sell  the  right  and  interest  of  the  pledgor  therein.  The  supreme 
court  held  the  affirmative  of  this  question,  and  their  judgment  was  affirmed 
pro  forma  by  the  court  of  appeals.  It  was,  however,  held,  that  after 
the  sale,  the  pledgee  was  entitled  to  the  possession  until  the  purchaser 
redeemed  it  from  the  pledgee.2  The  question  was  decided,  not  upon  com- 
mon law  principles,  but  upon  the  construction  of  the  New- York  statute 
relative  tc  executions  against  property.3  The  statute,  after  authorizing 
the  sale  upon  execution  against  the  pledgor,  of  his  right  and  interest  in 
the  goods,  enacts,  in  a  subsequent  section,  that  no  personal  property 
shall  be  exposed  for  sale,  unless  the  same  be  present,  and  within  the 
view  of  those  attending  such  sale.  Unless  the  sheriff  can  take  the  pos- 
session from  the  pledgee,  he  cannot  fulfill  this  requirement  of  the  law ; 
and  this  was  the  ground  on  which  the  cause  was  decided  by  the  supreme 
court.4  The  sheriff,  however,  is  not  authorized,  as  on  the  sale  of  property 
held  in  common  on  an  execution  against  one,  to  deliver  the  possession  to 
the  purchaser ;  for  this  would  be  putting  the  property  beyond  the  reach 
of  the  pledgee.5 

It  is  quite  obvious  in  this  case,  that  though  the  possession  may  thus 
be  taken  from  the  pledgee  by  the  sheriff,  that  the  purchaser  acquired  by 
his  purchase  a  mere  equity,  and  that  the  pledgee  is  entitled  to  the  pos- 
session after  the  sale,  until  the  redemption  by  the  purchaser.  Under 
this  construction  of  the  act,  the  possession  of  the  pledgee  is  no  further 
disturbed  than  is  necessary  to  fulfill  the  requirement  of  the  statute,  that 
personal  property,  sold  under  an  execution,  must  be  present  and  within 
the  view  of  those  attending  the  sale. 

The  effects  of  a  partnership  on  the  death  or  insolvency  of  one  or  more  of 
the  copartners,  can  in  no  way  be  administered  but  in  a  court  of  equity.  An 
action  at  law  is  wholly  ineffectual  to  adjust  the  conflicting  equities  which 
generally  grow  out  of  such  transactions.     Not  only  is  the  remedy  at  law 

1  2  R.  S.  366.  •  Bakewell  v.  Ellsworth,  6  Hill.  484 

1  Stief  v.  Hart,  \  Comst.  20.  Saul  v.  Krnger,  9  How.  Pr.  R.  572. 

•  2  K.  8.  365.  •  Waddell  v.  Cook,  2  Hill,  47.     Walsh 

v.  Adams,  i  Denio,  127. 


Ch.  10.]  Copartnership  Accounts.  727 

imperfect  and  inadequate,  but  in  many  cases  it  does  not  reach  the  dim" 
culties  of  the  case.  The  advances  of  the  copartners  in  their  business 
may  be  greatly  unequal;  one  may  have  loaned  to  the  firm  large  sums  of 
money  to  enable  it  to  sustain  its  operations,  and  may  thus  become  largely 
a  creditor  of  the  firm.  At  law  he  can  bring  no  action  against  his  com- 
panions, nor  against  the  firm,  for  he  cannot  sue  himself.  His  remedy, 
therefore,  is  in  equity,  which  looks  at  the  substantial  rights  of  the  parties 
•without  reference  to  the  technical  difficulties  which  the  rigid  rules  of  a 
court  of  law  interpose  to  such  an  action. 

It  not  unfrequently  happens  that  the  same  individual  may  be  a  mem- 
ber of  several  firms,  which  have  extensive  and  complicated  dealings 
together.  In  such  a  case,  neither  of  the  firms  can  maintain  an  action  at 
law  against  the  other.  On  the  dissolution  of  either  of  the  firms,  by 
death  or  insolvency,  their  affairs  can  only  be  adjusted  by  a  suit  in  equity, 
in  which  all  the  parties  interested  are  brought  before  the  court.  In  taking 
such  account  for  the  distribution  of  the  property,  thus  treated  as  a  trust 
fund,  the  partnership  creditors  are  entitled,  in  the  first  instance,  to  be 
satisfied  out  of  the  partnership  effects  ;  the  separate  or  private  creditors 
of  the  individual  partners,  from  the  separate  and  private  estate  of  the 
partners,  with  whom  they  have  made  private  and  individual  contracts ; 
and  the  private  and  individual  property  of  the  partners  is  not  to  be  ap- 
plied to  the  extinguishment  of  partnership  debts  until  the  separate  and 
individual  creditors  of  the  respective  partners  shall  have  been  paid.1  In 
a  court  of  law  the  preference  of  the  joint  creditors  to  the  joint  fund,  and 
of  the  individual  creditors  to  the  individual  property,  are  in  general  dis- 
regarded. A  joint  creditor  may  at  law  proceed  directly  against  the  sepa- 
rate property  of  one  of  the  partners,  and  an  individual  creditor  against 
the  partnership  effects,  in  disregard  of  the  equities  of  the  parties,  so  that 
a  resort  to  a  court  of  equity  becomes  in  the  end  indispensable.  The 
creditors,  indeed,  of  the  partnership  have  no  lien,  as  such,  upon  the  part- 
nership effects,  but  their  preference  to  the  joint  estate,  is  worked  out 
through  the  equity  of  the  partners.2 

It  is  scarcely  necessary  to  add,  in  concluding  this  chapter,  that  the 
power  of  one  partner  to  bind  the  firm  ceases  with  the  dissolution.3     And 

1  Miirrill  v.  Neill,  8  How.   414,  426.  J  Ex  parte  Elton,  3  Ves.  240.  Ex  parte 

Murray  v.  Murray,  5  J.  Ch.  R.  73-77.   Ex  Clay,  6  id.  813.    Ex  parte  Ruffin,  id.  125, 

parte  Crowder,  2  Vern.  700.     Ex  parte  126. 

Cook,  2  P.  Wms.  509.     Ex  parte  Hunter,  3  Mitchill  v.  Ostrom,  2  Hill,  520.  Sutton 

1  Atk.  228.     McCulloch  v.  Dashiel's  Ad-  v.  Dillaye,  3  Barb.  529.    Lansing  v.  Gaine, 

mins.  1  Hill  &  Gill,  96,  99-107.    Wilder  2  J.  R.  300.     Sandford  v.  Mickles,  4  id 

v.  Keeler,  3  Paige,  167.    Kirby  v.  Scboon-  224. 
maker,  8  Barb.  Cb.  R.  46. 


728  Part  Payment  by  one  Joint  Debtor.  [Ch.  10. 

though  in  some  of  the  earlier  cases  in  this  state  it  was  held,  that  the  ac- 
knowledgment of  the  present  existence  of  a  debt  by  one  partner,  after 
the  dissolution  of  the  firm,  was  sufficient  to  take  the  case  out  of  the  stat- 
ute of  limitations,  that  doctrine  has  since  been  exploded.1  And  even  a 
part  payment  by  one  of  several  joint  debtors,  of  a  demand  which  was 
formerly,  upon  the  principle  of  agency,  treated  as  an  acknowledgment  by 
all  who  were  benefited  by  the  payment,  has  been  held  not  to  have  that 
effect.2  Such  act  can  only  operate  against  the  party  by  whom  it  was 
performed,  and  does  not  prejudice  his  associates,  unless  indeed  they  have 
authorized  him  to  do  it. 

1  Van  Keuren  v.  Parmelee,  2  Comst.  a  Shoemaker  v.  Benedict,  1  Kern.  176, 

523  ;  overruling  Smith  v.  Ludlow,  6  J.  thus  overruling  Reid  v.  McNaughton,  15 

R.  2G7.    Johnson  v.  Beardsley,  15  id.  3.  Barb.  168.     See  ante,  191,  note. 
Patterson  v.  Choate,  7  Wend.  441. 


CHAPTER  XI. 


DP    CORPORATIONS  ,      AND    OF    PROCEEDINGS    AGAINST    THEM     !W 


EQUITY. 


SECTION   I. 

OF    CORPORATIONS;    AND    OF    PROCEEDINGS    AGAINST    THEM     IN     EQUITY,     INDE- 
PENDENTLY   OF    THE    REVISED    STATUTES. 

rpHE  full  discussion  of  the  law  in  relation  to  corporations  would  require 
X  a  separate  treatise.  The  subject  has  been  already  well  examined, 
and  the  law  conveniently  digested  by  a  work  of  established  reputation  in 
this  country.1  The  jurisdiction  in  relation  to  most  questions  connected 
with  corporations,  belongs  to  courts  of  law.  There  are,  however,  some 
subjects,  over  which  courts  of  equity  have  long  had  cognizance,  some  of 
which  have  been  noticed  in  the  chapter  on  charities,  and  there  are  many 
o'hers  which  have  been,  in  this  state,  devolved  upon  courts  of  equity  by 
the  legislature.  A  few  remarks  on  the  nature  and  kind  of  corporations 
existing  amongst  us,  and  their  general  powers  and  duties,  seem  necessary 
t')  a  proper  understanding  of  the  jurisdiction  of  courts  of  eq;iity  over 
them. 

A  corporation,  as  defined  by  Chief  Justice  Marshall,  in  a  celebrated 
case,'-  is  an  artificial  being,  invisible,  intangible  and  existing  only  in  con- 
templation of  law.  Being  the  mere  creature  of  law,  it  possesses  only 
those  properties  which  the  charter  of  its  creation  confers  upon  it,  either 
3xpressly,  or  as  incidental  to  its  very  existence.  These  are  such  as 
are  supposed  best  calculated  to  effect  the  object  for  which  it  is  created. 
Among  the  most  important  are  immortality,  and  if  the  expression  maybe 
allowed,  individuality ;  properties  by  which  a  perpetual   succession  of 

1  See  Angell  &  Ames  on  Corporations.        *  Dartmouth  College  v.   Woodward,  4 

Wheat.  636. 
Eq.  Jur  92 


ISO  Corporations.  [Ch.  11. 

many  persons  is  considered  as  the  same,  and  may  act  as  a  single  indi 
vidual."  And  in  another  case,  the  same  learned  judge  said:  the  greaf 
object  of  an  incorporation  is  to  bestow  the  character  and  properties  of  indi 
viduality  on  a  collective  and  changing  body  of  men.1  The  Revised  Stat- 
utes of  this  state  have  declared  what  powers  are  possessed  by  every  cor- 
poration. Thus,  it  is  enacted,2  that  every  corporation,  as  such,  has  power. 
1.  To  have  succession  by  its  corporate  name,  for  the  period  limited  in  its 
charter  ;  and  when  no  period  is  limited,  perpetually.  2.  To  sue  and  be 
sued,  complain  and  defend  in  any  court  of  law  or  equity.  3.  To  make  and 
use  a  common  seal,  and  alter  the  same  at  pleasure.  4.  To  hold,  purchase 
and  convey  such  real  and  personal  estate  as  the  purposes  of  the  corpora- 
tion shall  require,  not  exceeding  the  amount  limited  in  its  charter.  5.  To 
appoint  such  subordinate  officers  and  agents  as  the  business  of  the  cor- 
poration shall  require,  and  to  allow  them  a  suitable  compensation.  6.  To 
make  by-laws  not  inconsistent  with  any  existing  law,  for  the  management 
of  its  property,  the  regulation  of  its  affairs,  and  for  the  transfer  of  its 
stock.  These  powers,  it  is  declared,  vest  in  every  corporation,  thereafter 
created,  although  they  may  not  be  specified  in  its  charter,  or  in  the  act 
under  which  it  shall  be  incorporated.  In  addition  to  the  powers  thus 
enumerated,  and  to  those  expressly  given  in  its  charter,  or  in  the  act 
under  which  it  is  or  shall  be  incorporated,  it  is  further  declared  that  no 
corporation  shall  possess  or  exercise  any  corporate  powers,  except  such  as 
shall  be  necessary  to  the  exercise  of  the  powers  so  enumerated  and  given.3 
These  enactments  seem  merely  to  be  in  affirmance  of  the  common  law.4 

Corporations  are  divided  into  public  and  private  corporations.  The 
former  embrace  all  municipal  corporations,  as  well  as  towns  and  counties, 
which  latter  have  many  of  the  attributes  of  a  corporation,  and  indeed  are 
bodies  corporate  ;5  and  the  latter  all  civil  and  religious  corporations. 

Corporations  with  respect  to  the  number  of  persons  of  whom  they  are 
composed,  are  of  two  kinds,  aggregate  and  sole.  A  corporation  sole  con- 
sists of  a  single  person,  who  is  made  a  body  politic,  in  order  to  give  him 
some  legal  capacities,  and  especially  that  of  perpetuity,  which  a  natural 
person  cannot  have.     A  bishop,  dean,  parson  and  vicar  are  given  in  the 

1  Providence  Bank  v.  Billings,  4  Pet.  People  v.  Utica  Ins.  Co.  15  id.  383.     $, 

U.  S.  R.  562.  Y.  Fire  Ins.  Co.  v.  Ely,  2  Cowen,  699. 

3  1  R.  S.  599.  Ex  parte  Wilcox,  7  id.  402.    Hosack  v. 
*  1  R.  S.  600,  §§  2,  3,  The  College  of  Physicians,  5  Wend.  547. 

4  See  Angell  &  Ames  on  Corporations.  552.  Head  v.  The  Providence  Ins.  Co.  2 
Introduction,  passim.  1  Bl.  Com.  494  et  Cranch,  127.  See  note  at  the  end  of  tbe 
80q.     2  Kent's  Com.  267  et  seq.     Beaty    case  in  Peters'  condensed  edition. 

T  The  Marine  Ins.  Co.  2  J.  R.  108.    The        6  1  R.  S.  337-364. 


Ch.  11.]  Different  Kinds.  731 

English  books  as  examples  of  sole  corporations.  They  and  their  success- 
ors in  perpetuity  take  the  corporate  property  and  privileges.  The  word 
successors  is  in  general  as  essential  for  the  succession  of  property  in  a 
corporation  sole,  as  the  word  heirs  to  create  an  estate  of  inheritance  in  a 
private  individual.1  But  the  word  sitccessors  in  a  grant  to  a  corporation 
aggregate  is  not  indispensable  to  pass  a  fee,  because  it  is  a  body  which 
is  in  its  nature  perpetual.2  There  are  few  instances  of  corporations  solo 
in  this  state.  The  register  and  clerks  in  chancery,  the  supervisors  of 
towns  and  perhaps  some  other  officers  are  treated  as  a  quasi  corporation 
sole,  and  bonds  taken  to  them  and  their  successors  in  office,  are  enforced 
by  the  successor.3  A  corporation  aggregate  was  defined  by  Story,  J.,  in 
the  case  of  Dartmouth  College  v.  Woodward,  already  cited,  to  be  at  com- 
mon law  a  collection  of  individuals  united  into  one  collective  body,  under 
a  special  name,  and  possessing  certain  immunities,  privileges  and  capaci- 
ties in  its  collective  character,  which  do  not  belong  to  the  natural  persons 
composing  it.  Among  others  it  possesses  the  capacity  of  perpetual  suc- 
cession, and  of  acting  by  the  collected  vote  or  will  of  its  component  mem- 
bers, and  of  suing  and  being  sued  in  all  things  touching  its  corporate 
rights  and  duties.  It  is,  in  short,  an  artificial  person,  existing  in  con- 
templation of  law,  and  endowed  with  certain  powers  and  franchises,  which 
though  they  must  be  exercised  through  the  medium  of  its  natural  mem- 
bers, are  yet  considered  as  subsisting  in  the  corporation  itself,  as  distinctly 
as  if  it  were  a  real  personage.  Hence  such  a  corporation  may  sue  and  be 
sued  by  its  own  members  ;  and  may  contract  with  them  in  the  same  man- 
ner as  with  strangers.4 

Corporations  are  again  divided  in  England  into  ecclesiastical  and  lay. 
u  Ecclesiastical  corporations,"  says  Blackstone,  "  are  where  the  members 
who  compose  it,  are  entirely  spiritual  persons  ;  such  as  bishops,  certain 
deans  and  prebendaries  ;  all  arch-deacons,  parsons  and  vicars,  which  are 
sole  corporations  ;  deans  and  chapters  at  present,  and  formerly  prior  and 
convent,  abbots  and  monks,  and  the  like  ;  bodies  aggregate."5  We  have 
not  in  this  state  any  corporations  answering  to  this  description.  The 
religious  corporations  formed  under  our  general  act,6  are  not  composed  of 
ecclesiastical  persons,  and  are  expressly  created  to  take  into  their  posses- 
sion and  custody  all  the  temporalities  belonging  to  the  churchr  congrega- 
tion or  society,  as  the  case  may  be  ;  they  are  to  repair  and  alter  churches 


1  Co.  Litt.  8  b,  9  a,  94  b.  4  4  Wheat.  667,  668.    1  Bl.  Cora.  494, 

*  Id.  495. 

»  2  R.  S.  172,  §  27.    Jansen  v.  Ostran-  B  1  Bl.  Com.  497. 

de'    1  Cowen,  670.  ■  2  R.  L.  of  1813,  p.  212. 


732  Corporations.  [Ch.  11. 

or  meeting  houses,  and  to  erect  others  if  necessary,  and  to  erect  dwelling 
houses  for  the  use  of  their  ministers,  and  school  houses  and  other  buildings 
for  the  use  of  the  church,  congregation  or  society.  In  short,  it  is  their 
business  to  manage  the  temporal  affairs  of  the  church,  congregation  or 
society.  It  has  been  held  in  this  state  that  they  are  mere  civil  corpora- 
tions.1 

Lay  corporations  are  again  divided  into  eleemosynary  and  civil.  The 
former  are  such  as  are  constituted  for  the  perpetual  distribution  of  the 
free  alms  or  bounty  of  the  founder  of  them  to  such  persons  as  he  has 
directed.  Of  this  kind  are  all  hospitals  for  the  maintenance  of  the  poor, 
sick  and  impotent ;  and  all  colleges  and  academies  established  for  the 
promotion  of  learning  and  piety,  and  endowed  with  property  by  public 
and  private  donations.2  The  religious  corporations  formed  in  this  state, 
under  the  general  act,  are  not,  it  seems,  eleemosynary,  but  private  civil 
corporations  within  the  proper  definition  of  those  terms.3 

Civil  corporations  are  formed  for  a  variety  of  purposes,  and  embrace 
all  others  not  before  mentioned.  They  are  public  or  private.  Public 
corporations  have  just  been  noticed,  and  are  esteemed  such  as  exist  for 
public  political  purposes  only,  such  as  towns,  cities,  counties  and  the 
like.  They  are  founded  for  public  purposes  by  the  government,  and  al- 
though private  interest  may  be  affected  by  them,  they  are  still  public 
corporations.4  Under  the  denomination  of  private  corporations  may  be 
embraced  all  banking  corporations,  insurance  companies,  manufacturing 
companies,  railroad  companies,  turnpike  and  plank  road  companies  ;  re- 
ligious incorporations  formed  under  the  statute,  and  corporations,  whether 
formed  under  general  laws  or  otherwise,  which  have  been  created  for  an 
almost  innumerable  variety  of  objects.  In  all  these  cases,  the  uses  may 
in  a  certain  sense,  be  called  public,  but  the  corporations  are  private.5 

Eleemosynary  corporations,  such  as  hospitals,  colleges  and  the  like, 
though  often  called  in  common  language  public  institutions,  are  in  the 
legal  acceptation  of  the  term,  private  corporations.6 

It  is  generally  agreed  that  the  invention  of  corporations  is  attribut 
able  to  the  Romans  ;  and  it  is  evident  that  the  capacities  and  incapacities 
i>f  these  institutions  bear  a  striking  resemblance  to  those  under  the  civil 

'Robertson  v.  Bullions,  9  Barb.  64;        '  Robertson  v.-  Bullions,  9  Barb.  89,  per 

affirmed  on  appeal,  1  Kern.  243.  Hand,  J. ;  S.  C.  aff.  on  app.  1  Kern.  24 
2  Kent'g  Com.  274.     2  Bl.  Com.  498.        *  Dartmouth  College  v.  "Woodward, 

Per  Hand,  J.  in  Robertson  v.  Bullions,  9  Wheat.  668  et  seq.  per  Story,  J. 
Barb.   89.     4    Wheat.  669   et  seq.  per        6  Id. 
Story,  J.  "Id. 


Oh.  11. J  How  Created.  733 

'aws.1  Tliis  is  especially  so,  with  respect  to  those  corporations  where 
the  principle  of  personal  liability  of  the  stockholders  has  been  super- 
added, either  in  a  direct  or  in  a  qualified  manner,  to  that  of  the  corpora- 
tion. Such  corporations  are  in  effect  mere  partnerships  with  some  of  the 
attributes  of  a  corporation.2 

The  mode  by  which  corporations  are  created  has  some  bearing  upon 
the  remedies  against  them ;  especially,  the  extreme  remedy,  that  of  dis- 
solution. In  England  they  exist  by  prescription,  by  royal  charter  and 
by  act  of  parliament.  In  this  state,  corporations  were  created  before  the 
revolution,  by  charter  under  the  great  seal  of  the  colony,  as  representing 
the  prerogative  of  the  crown.  After  the  revolution  they  were  created  by 
act  of  the  legislature.  Subsequently,  they  were  authorized  to  be  formed 
under  general  laws,  for  particular  purposes,  such  as  for  religious  pur- 
poses.3 for  erecting  public  libraries,4  and  for  manufacturing  purposes.5  By 
the  constitution  of  1821,  a  restriction  was  sought  to  be  imposed  upon  the 
increase  of  corporations  by  legislative  enactment,  by  requiring  the  assent 
of  two  thirds  of  the  members  elected  to  each  branch  of  the  legislature 
to  every  bill,  creating,  continuing,  altering  or  renewing  any  body  politic 
or  corporate.6  The  increased  number  of  acts  of  incorporation,  passed 
during  the  continuance  of  that  legislative  restriction,  sufficiently  shows 
that  it  signally  failed  of  its  object.  And  accordingly,  under  the  consti- 
tution of  1846,  now  in  force,  the  legislature  is  forbidden  to  create  corpo- 
rations, except  for  municipal  purposes,  and  in  cases  where,  in  the  judg- 
ment of  the  legislature,  the  objects  of  the  corporation  cannot  be  attained 
under  general  laws.  A  marked  preference  is  given  to  the  formation  of  cor- 
porations under  general  laws.  Jfnd  the  general  and  special  acts  passed  pur- 
suant to  that  section,  are  permitted  to  be  altered  from  time  to  time,  or  re- 
pealed.7 The  constitution  also  provides  for  securing  dues  from  corporations, 
by  such  individual  liability  of  the  corporators  and  other  means  as  may  be 
prescribed  by  law.  The  term  corporations,  as  used  in  the  constitution,  ia 
declared  to  include  all  corporations  and  joint  stock  companies  having  any 
of  the  powers  and  privileges  of  corporations  not  possessed  by  individ- 
uals or  partnerships.  And  all  corporations  are  declared  to  have  the  right 
to  sue,  and  are  made  subject  to  be  sued  in  all  courts  in  like  cases  as  nat- 
ural persons.8     The  legislature  has  no  power  to  pass  any  act  granting 

1  Ang.  &  Ames  on  Corj    40  43.  *  L.  of  1796,  eh.  43,  soss.  19. 

1  Peiiniman    v.  Briggs,    1    Ilopk.  304.  6  Sess.  34,  ch.  67.     1  II.  L.  245. 

Sloe  v.  Bloom,  19  J.  R.  473,  per  Spencer,  •  Const.  1821,  art.  7,  §  9. 

Ch.   J.     Allen  v.  Sewall,  2  Wend.  327.  7  Const,  of  1846,  art.  8,  §  1. 

Moss  v.  Oakley,  2  Hill,  26;-).  8  Id.  £§  2.  3. 

*  1  Greenl.  70. 


734  Corporations  [Ch.  11 

any  special  charter  for  banking  purposes ;  but  corporations  or  associa» 
tions  may  be  formed  for  such  purposes,  under  general  laws.1  The  con- 
stitution provides  that  stockholders  in  every  corporation  and  joint  stock 
association  for  banking  purposes,  issuing  bank  notes,  or  any  kind  of  paper 
credits  to  circulate  as  money,  after  the  first  day  of  January.  1850,  shall 
be  individually  responsible  to  the  amount  of  their  respective  share  or 
shares  of  stock  in  any  such  corporation  or  association,  for  all  its  debts 
and  liabilities  of  every  kind,  contracted  after  the  said  day.2  The  legis- 
lature has  acted  under  these  provisions  of  the  constitution,  and  enacted 
various  general  laws  under  which  most  of  the  recent  railroad,  plank  road, 
banking  and  insurance  incorporations  have  been  formed. 

All  corporations,  whether  created  by  charter  or  under  general  laws, 
can  hold  and  possess  real  and  personal  property,  and  alienate  the  same, 
except  when  restrained  by  the  terms  of  their  charter  or  by  law.  At 
common  law,  they  are  not  restricted  as  to  the  amount  of  property  they 
may  hold,  and  they  possess  with  respect  to  it,  the  same  right  of  disposi- 
tion that  is  enjoyed  by  a  natural  person.3  In  most  of  the  charters  or 
acts  of  incorporation,  there  is  a  limitation  as  to  the  amount  of  the  prop- 
erty to  be  held,  and  a  restriction  as  to  the  power  of  alienation.  The 
general  powers  of  every  corporation,  as  has  been  already  mentioned,  are, 
amongst  other  things,  to  hold,  purchase  and  convey  such  real  and  per- 
sonal estate  as  the  purposes  of  the  corporation  shall  require,  not  exceed- 
ing the  amount  limited  in  its  charter.4  This  enactment  is  no  broader 
than  the  common  law.  We  have  not  enacted  the  restraining  acts,  passed 
in  the  reign  of  Elizabeth. 

With  respect  to  religious  corporations*fbrmed  under  the  general  act  of 
1784, s  although  they  were  authorized  to  have,  take,  receive,  acquire,  pur- 
chase, use  and  enjoy  lands,  tenements  and  hereditaments  and  goods  and 
chattels,  their  power  of  disposition  was  limited  to  demise,  lease  and  im- 
prove the  said  land,  tenements  and  hereditaments.  Special  acts  of 
incorporation  were  occasionally  granted,  both  before  and  after  the  pass- 
ing  of  the  general  act,  without  restriction  as  to  the  power  of  alienation.' 
The  necessity  of  selling  their  estate  was  sometimes  felt  by  corporations 
formed  under  the  general  act,  and  relief  was  frequently  granted  by  spe- 
cial acts  of  the  legislature  authorizing  such  sale.7     At  length  in  1806,  tho 

1  Const,  of  1846,  art.  8,  §  4.  6  1  Greenl.  71. 

*  Id.  art.  8,  §  7.  8  See  Sixth  Sess.  ch.  17.     1  Greenl.  GO 

1  Co.  Litt.  44  a,  300,  b.    Bac.  Abr.  tit.  7  See  26th  Sess.  chs.  76,  77,  as  speci- 

Corporation,  E,  p.  448.     Dutch  Church  men-?  of  these  acts.     29th   Sess.  ch.  5. 

v.  Mott,  7  Paige,  83.  28th  Sess.  ch.  28.     Id.  ch.  33.     Id.  ch. '  IS 

MR.  S,  599,  sub.  4. 


Ch.  11,]  May  be  Seised  of  Land  in  Trust.  73i> 

general  act  was  so  amended  that  the  chancellor  was  authorized,  upon  the 
application  of  any  religious  corporation,  in  case  he  should  deem  it  proper, 
to  make  an  order  for  the  sale  of  any  real  estate  belonging  to  such  cor- 
poration, and  to  direct  the  application  of  the  money  arising  therefrom,  to 
such  uses  as  the  same  corporation,  with  the  consent  and  approbation  of 
the  chancellor,  should  conceive  to  be  most  for  the  interest  of  the  society 
to  which  the  real  estate  so  sold  belonged  ;  but  this  provision  did  not  ex- 
tend to  any  of  the  lands  granted  by  the  state  for  the  support  of  the  gos- 
pel.1 And  hence,  applications  to  the  legislature  for  relief  continued 
occasionally  to  be  made,  after  the  chancellor  was  thus  clothed  with  a  limited 
authority  in  the  matter.'2  The  general  act  was  revised  in  1801  and  again 
in  1813,  and  continues  at  this  day  the  law  of  this  state.3  The  principal 
difficulty  with  respect  to  the  alienation  of  real  property  held  by  a  reli- 
gious corporation,  was  that  the  legal  estate  in  the  hands  of  the  purchaser, 
with  notice  of  the  trust,  would  be  chargeable  with  the  charitable  uses  to 
which  it  was  originally  devoted.  Real  estate  held  by  a  corporation  for 
its  ordinary  purposes  might  be  sold  and  conveyed  in  the  same  way  as  a  nat- 
ural person  might  dispose  of  his  own  property.  But  real  property  held  by 
n  corporation  to  charitable  uses,  would  be  followed  by  a  court  of  equity 
into  the  hands  of  the  alienee  with  notice.4  And  the  chancellor  said  in 
the  case  of  the  Dutch  Church  v.  Mott,  that  the  intention  of  the  legisla- 
ture, by  the  act  of  1806,  amending  the  general  act  as  to  religious  incor- 
pirations.  was  to  give  to  every  religious  corporation  an  unlimited  power 
to  convey  any  real  property,  held  by  them  in  trust  for  the  corporators, 
provided  the  previous  consent  of  the  court  to  such  alienation  of  the  church 
property,  and  a  direction  for^fhe  proper  application  of  the  proceeds  there- 
o:'  for  the  benefit  of  the  corporators,  was  obtained  in  the  summary  mode 
which  is  there  prescribed.  That  religious  corporations,  formed  under  the 
general  act,  cannot  now  alien  their  real  estate,  without  the  leave  of  the 
court,  which  may  now  be  granted  by  the  supreme  court,  and  hj  the  county 
court,5  is  obvious  from  the  course  of  our  legislation  on  the  subject,  and 
is  well  sustained  by  authority.6 

A  corporation  may  be  seised  of  lands  in  trust,  provided  the  objects  of  the 
trust  be  not  foreign  from  its  institution.7  But  the  loan  officers  of  a 
county,  who  are  by  law  a  corporation,  cannot  receive  a  grant  of  land  for 

1  20th  Sess.  ch.  43.  6  Code,  §  30. 

•  31th  Sen.  168.  •  Viele  v.  Osgood,  8  Barb.  130.    Voor- 
s  2  II.  L.  212.     8  R.  S.  202.                        hies  v.  Presbyterian  Church  of  Amster 

*  Tlie  Mayor,  fcc.  v.  Lowten,  1  V.  <VR  dam.  id.  135.  Montgomery  v.  Johnson, 
220,  240.    Dutch  Church  v.  Mott,  7 Paige      9  How.  Pr.  R.  232. 

84.  T  Jackson  v.  ITnrfvell,  8  J.  K.  422. 


736 


Corporations. 


[Ch.  11. 


the  use  of  a  town,  or  of  a  church  ;  nor  can  the  supervisors  of  a  county. 
who  are  also  a  corporation,  take  a  grant  of  land  for  a  particular  town.1 
The  reason  is,  that  it  is  beyond  the  capacity  of  the  corporation.  Numer- 
ous cases  were  referred  to  under  the  chapter  relative  to  charities,  which 
it  is  unnecessary  here  to  repeat.  The  support  of  particular  doctrines  or 
°ystems  of  worship  or  church  government,  or  a  connection  with  some  par- 
'.jcular  church  judicatory,  may  be  made  a  Condition  in  a  grant  or  donation 
to  a  religious  society  formed  under  the  act.2  Such  condition,  if  explicit 
and  clear,  and  free  from  all  doubt  or  obscurity,  would  be  good.  An  un- 
certain condition  would  be  void.  The  title  of  the  trustees  under  such  a 
deed  would  be  good,  so  long  as  a  majority  of  the  corporators  chose  to 
Abide  by  the  condition ;  and  when  that  was  departed  from,  their  title 
would  be  forfeited.3 


1  Jackson  v.  Hartwell,  8  J.  R.  422. 

*  Robertson  v.  Bullions,  9  Barb.  6G ;  S. 
ft;  1.  Kern.  243. 

*  Per  Selden,  J.  in  same  case,  p.  265. 

It  would  seem  that  a  corporation  form- 
ed under  the  act  for  the  Incorporation  of 
Religious  Societies,  (3  R.  S.  292,  §4,)  may 
execute  any  trust  which  comes  within 
the  scope  and  object  of  its  institution. 
By  the  fourth  section  it  is  empowered  to 
take  into  its  possession  and  custody  all 
the  tenmoralities  belonging  to  such 
church,  congregation  or  society,  whethei 
real  or  personal,  and  whether  obtained  by 
gi«'t,  grant,  or  devise,  directly  to  such 
ch  irch.  congregation  or  society,  or  to  any 
other  person  for  their  use.  It  is  author- 
ized also  to  hold  and  enjoy  all  the  debts, 
demands,  rights  and  privileges,  and  all 
churches,  meetinghouses,  parsonages  and 
burying  places,  with  the  appurtenances, 
and  all  estates  belonging  to  such  church, 
congregation  or  society,  in  whatsoever 
manner  the  same  may  have  been  acquir- 
ed, or  in  whose  name  soever  the  same 
may  be  held,  as  fully  and  amply  as  if  the 
right  or  title  thereto  had  originally  been 
vested  in  the  said  trustees;  and  also  to 
purchase  and  hold  other  real  and  personal 
estate,  and  to  demise,  lease  and  improve 
the  same,  for  the  use  of  such  church,  con- 


gregation or  society,  or  other  pious  uses, 
so  as  the  whole  do  not  exceed  in  annual 
value  the  sum  limited  by  the  act.  The 
corporation  is  also  authorized  to  repair 
and  alter  their  churches  or  meeting 
houses,  and  to  erect  others  if  necessary, 
and  to  erect  dwelling  houses  for  the  use 
of  their  ministers,  and  school  houses  and 
other  buildings  for  the  use  of  such  church, 
congregation  or  society.  The  trustees  are 
also  empowered  to  make  rules  and  orders 
for  the  managing  the  temporal  affairs  of 
such  church,  congregation  or  society,  anj 
to  dispose  of  all  moneys  belonging  there 
to ;  and  to  regulate  and  order  the  rent 
ing  the  pews  in  their  churches  and  meet- 
ing houses,  and  the  perquisites  for  the 
breaking  of  the  ground  in  the  cemetery 
or  church  yards,  and  in  the  said  churches 
and  meeting  houses  for  burying  the  dead, 
and  all  other  matters  relating  to  the  tem- 
poral concerns  and  revenues  of  such 
church,  congregation  or  society. 

Nor  is  it  necessary  that  a  bequest  to 
the  corporation  should  be  for  all  the  pur- 
poses to  which  property  may  be  applied. 
If  the  bequest  or  grant  be  to  the  corpo- 
ration for  any  one  or  more  objects  for 
which  the  corporation  was  formed,  it  will 
be  valid.  And  it  is  not  essential  that  it 
should  be  expressed  to  be  for  all  the  pur- 
poses for  which  it  was  instituted.     Hence 


Ch  11.] 


Relief  against  Corporations. 


737 


From  what  has  been  said,  it  is  obvious  that  there  are  numerous  cases  in 
which  the  interposition  of  courts  of  equity  is  necessary,  against  corpora- 
tions. It  remains  to  consider  what  class  of  corporations  are  amenable  to 
the  court,  and  what  is  the  general  nature  of  the  relief  which  can  be 
granted. 

In  considering  the  doctrine  of  injunction,  we  had  occasion  to  bring  to 
the  notice  of  the  learned  reader  a  variety  of  cases,  in  which  that  process 


a  bequest  to  pay  the  salary  of  the  minis- 
ter was  held  to  be  a  good  testamentary 
disposition  of  property.  (Williams  v.  Wil- 
liams, supra.)  It  is  conceived  that  it 
would  be  equally  valid,  if  it  comes  with- 
in any  of  the  purposes  of  the  corporation, 
although  its  immediate  benefits  are  en- 
joyed only  by  a  portion  of  the  society. 
Thus,  it  is  believed  the  communion  furni- 
ture may  be  held  in  trust  for  the  mem- 
bers of  the  church  in  full  communion, 
and  the  school  books  of  the  sabbath 
school  in  trust  for  that  portion  of  the 
congregation  who  are  interested  therein. 
Such  trust  may,  indeed,  in  one  sense,  be 
said  to  be  for  the  benefit  of  the  whole 
society  ;  for  without  an  organized  church 
no  religions  society  could  long  exist. 
(See  remarks  of  Selden,  J.,  in  Robertson 
v.  Bullions,  1  Kernan,  203.  which  appa- 
rently conflict  with  these  views.) 

From  the  authority  given  to  the  trus- 
tees to  erect  school  houses,  &c,  for  the 
use  of  the  church,  congregation  or  society, 
it  is  to  be  inferred  that  the  legislature  of 
1784  ir  tended  to  provide  for  the  estab- 
lishment of  primary  schools  for  the  edu- 
ii  of  the  children  belonging  to  the 
congregation.  And  although  subsequent 
legislation  has  provided  a  different  system 
of  primary  education  for  the  children  of 
the  state,  and  superseded,  in  a  great 
measure,  the  necessity  for  parish  schools 
connected  with  churches;  yet  the  pro- 
vision in  question  has  not  been  repealed, 
and  the  trustees  of  religious  societies  may, 
it  is  believed,  accept  and  execute  trusts 
for  the  support  of  such  schools.     Indeed, 

Kq.  Ji-r.  93 


there  is  no  reason  to  doubt  that  the  giv- 
ing of  a  corporation  to  religious  socie- 
ties, was  not  intended  to  withdraw  them 
from  the  protection  of  the  law.  which  eve- 
ry voluntary  association  for  the  purpose  of 
religion  and  charity  before  enjoyed  ;  but 
to  render  the  rights  of  all  more  stable 
and  secure.  The  statute  makes  the  trus- 
tees the  corporation ;  and  treats  the  soci- 
ety as  the  constituent  body.  There  are 
incidental  remarks  of  judges  in  some  of 
the  cases  tending  to  show  that  the  mem- 
bers of  the  society  are  the  corporation. 
(Baptist  Church  v.  Witherill,  7  Paige, 
296.  Lawyer  v.  Sipperk,  id.  231.  Mil- 
ler v.  Gable,  2  Den.  4;i2.  Robinson  v. 
Bullions,  9  Barb.  64.  S.  C.  1  Kern.  248.) 
But  the  express  language  of  the  statuto 
is  otherwise ;  and  the  earlier  cases  treated 
the  trustees  alone  as  the  corporation  in 
distinction  from  the  society.  (Compare 
§j  3  and  16  of  the  general  act  of  1813,  3 
R.  S.  295,  299.  The  People  v.  Runkle  9 
J.  R.  147.)  The  object  of  the  act  was 
doubtless  to  give  the  voluntary  associa- 
tion called  a  church,  or  congregation,  a 
corporation  to  hold  and  manage  its  tem- 
poralities. The  16th  section  of  the  gen- 
eral act  speaks  of  the  corporation  as  a  dis- 
tinct body  from  the  religious  society 
connected  with  it. 

This  view  is  confirmed  by  subsequent 
legislation  on  the  same  subject.  Thus, 
by  the  act  for  the  incorporation  of  socie- 
ties to  establish  free  churches,  passed 
April  13,  1854,  (L.  of  1854,  p.  494,)  the 
persons  named  in  the  cert  [.'?•■"  te  ax  trustees 
and  their  successors,  bring  citizens  of  the 


738 


Corporations. 


[Ch.  II. 


of  the  court  may  be  applied,  in  staying  the  committing  of  breaches  of 
trust,  and  other  fraudulent  alienations  of  property.  We  saw  that  equity 
had  a  jurisdiction  over  municipal  corporations  in  this  respect.  It  is  to  be 
inferred  from  what  has  been  said,  that  this  jurisdiction  existed  at  com- 
mon law  independently  of  the  statute.  "We  shall  now  proceed  to  notice 
briefly  some  of  the  cases  where  relief  is  granted  by  courts  of  equity 
against  corporations,  by  virtue  of  their  inherent  jurisdiction  over  trusts 
and  frauds,  and  other  subjects  of  equitable  relief;  and  some  of  the  cases 
where  it  may  be  granted  by  statute. 

Relief  may  be  granted  by  courts  of  equity  against  a  municipal  corpo- 
ration as  well  as  against  a  natural  person.  There  is  no  distinction  be- 
tween a  municipal  corporation  and  any  other  corporation  aggregate,  in 
respect  to  the  power  of  a  court  of  justice  over  its  proceedings.  The  con- 
stitution declares  that  "  all  corporations  shall  have  the  right  to  sue,  and 
shall  be  subject  to  be  sued,  in  all  courts,  in  like  cases  as  natural  persons.1 


United  States,  are  declared  a  body  politic 
and  corporate.  And  the  act  of  1855,  en- 
titled "  an  act  in  relation  to  conveyances 
and  devi>es  of  personal  and  real  estate 
for  religious  purposes,"  which  was  enact- 
ed while  these  sheets  were  passing  through 
the  press,  is  based  upon  the  same  theory  ; 
and  was  obviously  framed  to  compel  re- 
ligions societies,  which  had  declined  to 
avail  themselves  of  the  privileges  of  the 
general  act  of  1784  as  revised  in  1813,  to 
organize  a  corporation  under  one  act  or 
the  other.  The  act  of  1855  speaks  of  the 
corporation  as  one  body,  and  the  reli- 
gious society  Avhose  property  it  manages 
as  another. 

If  we  look  at  the  act  for  the  incorpora- 
tion of  benevolent,  charitable,  scientific 
and  missionary  societies,  passed  April  12, 
1848,  (L.  of  1848,  p.  447.)  and  the  amend- 
ment of  1849,  (L.  of  1849,  p.  400,)  we 
shall  find  further  confirmation  of  the 
same  idea.  By  this  act,  not  only  the 
persons  who  sign  the  certificate,  but 
their  associates  and  successors,  on  con- 
forming to  the  requirements  of  the  act, 
become  a  corporation.  The  act  speaks 
of  the  society  as  being  thus  incorporated. 


To  make  it  more  clear,  it  is  expressly 
enacted,  that  the  provisions  of  the  act 
shall  not  authorize  the  formation  of  any 
incorporation,  which  can  be  incorporated 
under  the  act  entitled  "  an  act  to  provide 
for  the  incorporation  of  religious  socie- 
ties, passed  April  5, 1813,  and  the  several 
acts  amending  the  same."  It  is  quite 
plain  that  the  legislature  did  not  intend 
that  the  religious  society  itself  should  be 
incorporated,  but  that  it  should  be  fur- 
nished with  a  corporation  composed  of 
laymen  or  a  majority  of  laymen,  by  which 
its  temporalities  should  be  held  and  man- 
aged. Hence  the  reason  why  religious 
societies  are  forbidden  to  be  incorporated 
under  the  general  act  of  1848. 

Under  this  view  of  the  subject,  it  is 
obvious  that  the  relation  of  trustee  and 
cestui  que  trust  subsists  between  tho  cor- 
poration and  the  religious  society  to 
which  it  is  attached.  It  is  therefore  with- 
in the  undisputed  jurisdiction  of  courts 
of  equity  to  enforce  the  execution,  and 
correct  the  abuses,  in  the  administration 
of  the  trust  property. 

1  Const,  art.  8,  §  3.  Davis  v.  Mayor  of 
"NT.  Y.  1  Duer,  451. 


Ch.  11.]  Relief  against  Corporations.  739 

But  there  are  some  acts  which  a  municipal  corporation,  acting  within  the 
limits  of  its  charter,  may  do  without  any  of  its  doings  being  liable  to  the 
supervision  of  any  court.  Thus  the  common  council  of  New-York  has 
large  legislative  and  discretionary  duties  to  perform,  and  whether  the 
laws  and  ordinances  it  makes,  within  its  jurisdiction,  be  wise  or  unwise, 
be  made  with  good  or  bad  motives,  it  is  not  the  province  of  the  court  to 
inquire.  But  with  regard  to  the  acts  of  the  corporation  in  reference  to 
its  private  property,  it  stands  upon  the  footing  of  other  corporations.  Its 
corporate  property  is  held  in  trust  for  the  benefit  of  its  constituents,  and 
it  is  bound  to  administer  it  faithfully,  honestly  and  justly.  And  if  it  is 
guilty  of  a  breach  of  trust,  by  disposing  of  its  valuable  property,  without 
any  or  for  a  nominal  consideration,  it  will  stand  upon  the  same  footing  as 
if  it  were  the  representative  of  a  private  individual,  or  of  a  private  corpora- 
tion.1 The  mere  fact,  in  such  a  case,  that  the  forms  of  legislation  are  used, 
in  committing  such  breach  of  trust,  will  make  no  difference  in  the  charac- 
ter of  the  act  It  will  not  be  in  any  sense  the  exercise  of  a  political 
power  delegated  for  public  purposes.  And  the  privilege  of  exemption 
from  judicial  interference  terminates  where  legislative  action  ends.2 

This  subject  has  been  very  recently  and  ably  discussed  in  the  courts 
of  the  city  of  New- York,  in  the  controversy  relative  to  the  grant  by  the 
common  council  of  the  right  to  lay  a  railway  in  Broadway  in  that  city.3 
The  duty  of  the  court  to  interpose  by  injunction,  at  the  instance  of  the 
tax-payers,  to  restrain  the  commission  of  acts  amounting  to  a  breach  of 
trust,  was  strongly  enforced.  "No  corporation,"  said  Roosevelt,  J.,  in 
one  of  the  cases,  "  whether  moneyed  or  municipal,  having  stockholders  or 
itueots,  has  a  right  without  their  consent,  to  give  away  the  property 
intrusted  to  its  care  The  exclusive  privilege  of  laying  a  rail  track  and 
running  cars,  and  receiving  pecuniary  emolument  therefrom,  like  the  fran- 
chise of  a  bridge  or  ferrj^,  or  other  incorporeal  hereditament,  is  as  much 
a  subject  of  property  as  the  park  or  the  city  hall,  or  the  moneyed  contents 
of  the  city  treasury.  To  grant  such  a  privilege  to  a  few  favored  individ- 
uals without  any  public  equivalent,  is  in  principle  the  same  as  a  resolu- 
tion or  an  ordinance  of  the  common  council  directing  a  division  of  the 
funds  of  the  city,  raised  by  taxation,  among  the  members  themselves. 
Such  acts,  whether  done  or  threatened,  are  all  alike  gross  breaches  of 
trust,  and  subject  as  such  to  the  jurisdiction  of  the  supreme  court  sitting 
as  a  court  of  equity." 

1  Milium  v.  Sharp,  15  Barb.  194.  245.     Davis  v.  Mayor  of  N.  Y.  1  Dner, 

2  Id.  453  ;  affirmed  by  the  court  of  appeals. 
*  Id      Stuvvesant  v.  Peansall.  15  Barb. 


740  Corporations.  [Ch.  Xi 

The  principle  extends  to  all  corporations,  municipal  or  civil.  They  are 
all  alike  lialle  for  a  fraudulent  breach  of  trust.  As  was  said  by  the 
chancellor,  in  the  Attorney  General  v.  Utica  Insurance  Co.,1  if  the  direct- 
ors of  the  company  were  to  appropriate  the  funds,  or  capital  of  the  com- 
pany to  their  own  private  emolument ;  or  if,  disregarding  the  business  of 
insurance,  they  were  to  divert  the  funds  to  the  destruction  of  that  object, 
by  making  roads  and  canals,  or  building  theatres  or  churches,  he  had  no 
doubt  a  court  of  equity  would  have  a  right,  and  would  be  bound,  to  inter- 
fere  and  check  the  abuse. 

The  cases  which  have  been  considered  were  not  decided  upon  the 
ground  that  a  railway  in  a  city  is  a  nuisance,  either  public  or  private, 
but  upon  the  ground  of  a  fraudulent  breach  of  trust.  It  was  conceded  to 
be  well  settled  that  a  railroad  in  a  city  was  neither,  -per  se,  a  nuisance  or 
a  purpresture.2 

Other  cases  have  arisen,  which  have  called  for  the  aid  of  a  court  of 
equity  to  enforce  the  claim  of  creditors  against  individual  stockholders  of 
a  corporation  made  liable  in  a  certain  contingency  by  the  terms  of  their 
charter.     An  example  of  this  kind  of  relief  arose  under  the  general  man- 
ufacturing act  of  1811. 3     By  the  seventh  section  of  that  act  it  was  pr<; 
vided  that  for  all  debts  that  shall  be  due  and  owing  by  the  company  at  the 
time  of  its  dissolution,  the  persons  then  composing  the  company  shall  be 
individually  responsible  to  the  extent  of  their  respective  shares  of  stock 
in  said  company,  and  no  further."     A  creditor  of  a  corporation  framet 
under  the  act  in  question  filed  his  bill  against  the  stockholders  to  compc 
payment  of  his   debt,  alleging  amongst  other  things,  in  substance,  that 
the  corporation  had  become  dissolved  by  the  sale  of  all  its  property  by 
the  sheriff  under  an  execution   against  it.  and  by  its  ceasing  for  more 
than  a  year  thereafter  to  transact  any  corporate  business.     The  chancel- 
lor admitted  that  a  corporation  might  be  dissolved,  if  it  becomes  incapa 
ble  of  continuing  its  corporate  succession,  or  executing  its  corporat 
functions  ;  as  by  the  death  of  all  its  members,  or  the  destruction  of  ai 
integral  part  of  it,  or  it  might  be  dissolved  by  surrender  of  its  franchise 
into  the  hands  of  the  government,  or  by  a  forfeiture  of  its  charter  througl 
abuse  or  neglect  of  its  franchises  ;  but  he  thought  the  forfeiture  in  sucl 
case  should  be  judicially  ascertained  and  declared,  by  a  proceeding  unde 
the  process  of  scire  facias  at  the  suit  of  the  government  in  a  court  of  law, 
And  he  accordingly  dismissed  the  bill.4     On  appeal  to  the  court  for  th 

1  2  J.  Ch.  R.  389.  528.     Plant  v.  The  Long  Island  Pw.  R. 

*  2  J.  Ch.  Pw.  389.    See  on  that  point,    id.  26. 
Drake  v.  The  Hudson  River  R.  R.  7  Barb.        3  1  R.  L.  of  1813,  p.  245. 

*  Slee  *.  Bloom,  5  J.  Ch.  R.  366,  381. 


Ch.  11.]  Relief  against  Corporations.  741 

correction  of  errors,  the  decision  of  the  chancellor  was  reversed,  and  re 
lief  was  granted  to  the  complainant.  The  prevailing  opinion  was  deliv- 
ered by  Spencer,  Ch.  J.,  and  he  put  his  opinion  that  the  corporation  was 
dissolved,  on  the  ground  that  it  had  done  and  suffered  acts  to  be  done, 
equivalent  to  a  direct  surrender  of  its  franchises.  Such  surrender  he 
considered  as  an  act  in  pais.  And  in  point  of  good  sense  he  thought 
that  the  corporation  was  dissolved,  within  the  meaning  and  intent  of  the 
act.  as  regarded  creditors,  when  it  ceased  to  own  property,  real  or  per- 
sonal, and  oeased  for  upwards  of  a  year  from  doing  any  act  manifesting 
an  intention  to  resume  its  corporate  functions.1  The  doctrine  of  the 
court  of  errors  was  followed  by  the  chancellor  in  a  subsequent  case,  and 
affirmed  on  appeal  by  the  court  for  the  correction  of  errors.2  The  prop- 
erty of  a  dissolved  corporation  under  the  statute  must  he  treated  clearly 
as  a  frust  fund  for  the  benefit  of  its  creditors  ;  and  the  jurisdiction  of 
courts  of  equity  to  reach  it  is  through  its  general  jurisdiction  over  trusts. 
The  personal  liability  of  the  stockholders,  which  in  some  cases  is  super- 
added to  the  property  of  the  corporation,  as  a  fund  for  the  payment  of  its 
debts,  partakes  of  the  character  of  the  fund  to  which  it  is  auxiliar}' ;  and 
can  lie  appropriately  reached  only  by  the  instrumentality  of  a  court  of 
equity. 

In  a  case  somewhat  earlier  than  that  of  Slee  v.  Bloom,  the  attorney 
general  filed  an  information  ex  officio  against  the  Utica  Insurance  Com- 
pany to  restrain  it  by  injunction  from  exercising  banking  powers,  in  vio- 
lation of  the  restraining  act  then  in  force.3  The  chancellor  conceded  that 
banking  had  become  a  franchise  derived  from  the  grant  of  the  legislature, 
and  subsisting  only  in  those  who  could  produce  the  grant ;  and  if  exer- 
cised by  others,  it  was  a  usurpation  of  a  privilege  for  which  a  competent 
remedy  could  be  had  by  the  public  prosecutor  in  the  supreme  court.  But 
he  denied  that  a  court  of  equity  had  concurrent  jurisdiction  in  the  case. 
And  he  doubted  whether  the  English  court  of  chancery  entertained  juris- 
diction over  corporations,  except  in  cases  of  breach  of  trust,  and  whether 
it  was  not  confined  to  charitable  institutions.4  The  bill  having  been  dis- 
missed by  the  chancellor,  the  attorney  general  filed  an  information  in  the 
supreme  court  in  the  nature  of  a  qno  warranto  against  the  same  com- 
pany, and  obtained  a  judgment  of  ouster.5  The  decision  in  this  case  and 
n  that  of  Slee  v.  Bloom,  led  to  the  adoption  of  the  act  of  1825,  relative 

1  Slee  v.  Bloom,  19  J.  R.  456;  revers-        s  2  R.  L.  234. 

Sng  previous  case  before  the  Ch.,  5  J.  Ch.  *  Att*y  Gen.  v.  Utica  Ins.  Co.  2  J.  Ch. 

R.  366.  R.  371. 

2  Penniman  v.  Brigys.  Hopk.  300  ;  S.  C.  6  The  People  v.  Utica  Ins.  Co.  15  J.  R. 
8  Cowen,  3S7.  358. 


742  Corporations.  [CIi.  11 

to  fraudulent  bankruptcies  of  incorporated  companies,  and  to  the  provis- 
ions of  the  Revised  Statutes  relative  to  proceedings  against  corporations 
in  equity,  which  will  shortly  be  considered.1 

The  legislature  have  deemed  it  fit  to  create  corporations,  with  power 
PS  execute  trusts.  The  New-York  Life  Insurance  and  Trust  Company, 
incorporated  in  1830,2  is  an  institution  of  great  resources,  and  has  been 
conducted  with  eminent  ability,  and  fidelity  to  the  purposes  for  which  it 
was  created.  It  is  authorized,  among  other  things,  to  receive  moneys  in 
trust  to  accumulate  the  same  at  such  rate  of  interest  as  may  be  obtained 
or  agreed  on,  or  to  allow  such  interest  thereon  as  may  be  agreed  on,  not 
exceeding,  in  either  case,  the  legal  rate.  It  is  also  empowered  to  execute 
all  such  trusts  as  may  be  committed  to  it  by  any  person  or  persons  what- 
ever, or  may  be  transferred  to  it  by  order  of  the  court  of  chancery  or  a 
surrogate.  It  can  be  appointed  in  certain  cases,  by  the  court  of  chancery, 
now  the  supreme  court,  or  a  surrogate,  the  guardian  of  the  estate  of 
infants,  whose  annual  income  exceeds  one  hundred  dollars,  and  is  not 
required  to  give  a  bond  or  other  collateral  security. 

There  can  be  no  doubt,  that  without  any  further  legislation  on  the 
Subject  such  a  corporation  could  be  proceeded  against  in  equity  to  en- 
force the  execution  of  any  trust  committed  to  it,  and  for  an  account  of 
the  trust  funds.  It  might  doubtless,  in  cases  of  gross  abuse,  be  removed 
as  a  trustee,  without  displacing  from  their  appropriate  offices,  the  trustees 
or  other  managing  agents  of  the  corporation.  Independently  of  statutory 
authority,  it  is  held  that  courts  of  equity  cannot  remove  a  trustee  of  an 
incorporation,  even  for  a  breach  of  trust.3  The  relation  of  the  trustees 
to  the  corporation,  it  was  said  in  the  same  case,  is  not  that  of  a  private 
trustee  to  the  cestui  que  trust.  They  are  merely  the  managing  agents 
by  whom  the  business  of  the  corporation  is  performed.  While  they  may 
be  compelled  to  the  faithful  execution  of  the  trusts  confided  to  them,  they 
can  only  be  removed  by  a  court  of  equity,  in  cases  within  the  statute 
which  confers  upon  the  court  that  power. 

;  At  common  law,  upon  the  dissolution  or  civil  death  of  a  corporation, 
all  its  real  estate  remaining  unsold,  reverts  back  to  the  original  grantor 
or  his  heirs,4  and  its  personal  property  vests  in  the  people  as  succeeding 

1  L.  of  1825,  p.  448.     2  R.  S.  461.  Sandf.   Ch.  R.  439.     Lawyer  v.  Sipper- 

1  L.  of  1830,  p.  76;  amended,  1834,  p.  ly,  7  Paige,  286.    Bowden  v.  McLeod,  1 

445.  Edw.  Ch.  R.  588. 

8  Robertson  v.  Bullions,  9  Barb.  65 ;  *  Hooker   v.   Utica   Turnpike   Co.   12 

affirmed,  1  Kern.  243 ;  disagreeing  with  Wend.  373.     Ang.  &  Ames  on  Corpora 

Knlskern  v.  The  Lutheran  Churches,  1  tions,  159. 


Ch.  11.]  Effect  of  Dissolution  ox  Property.  tlu 

to  the  prerogatives  of  the  crown ;  and  the  debts  due  to  and  from  the 
corporation  are  extinguished.1  These  common  law  consequences  of  a 
dissolution,  are  usually,  in  this  country,  prevented  by  some  provision  ir 
the  charter,  or  by  the  general  statutes  of  the  state.  In  this  state,  by  th< 
general  act  relative  to  turnpikes,  and  -which  by  a  subsequent  act  is  made 
applicable  to  the  existing  plank  road  and  turnpike  incorporations,  pro- 
vision is  made  for  the  dissolution  of  the  corporations  by  the  legislature, 
when  by  the  income  arising  from  tolls,  they  shall  have  been  compensated 
for  all  moneys  expended  in  purchasing,  making,  repairing  and  taking 
care  of  their  road,  and  have  received  in  addition  thereto,  an  average  annual 
interest  at  the  rate  of  ten  per  cent ;  and  on  such  dissolution,  all  the 
rights  and  property  of  such  corporations  vest  in  the  people  of  the  state.2 
By  another  act,  it  is  declared  that  whenever  a  turnpike  corporation,  or 
a  corporation  owning  a  toll-bridge  shall  become  dissolved,  the  road  and 
bridge  shall  become  a  public  highway.3  The  general  act,  which  provides, 
doubtless,  for  all  cases  not  specially  provided  for  in  the  charter  or  act 
of  incorporation,  enacts  that  upon  the  dissolution  of  any  corporation  cre- 
ated or  to  be  created,  unless  other  persons  shall  be  appointed  by  the  legis- 
lature, or  by  some  court  of  competent  authority,  the  directors  or  managers 
of  the  affairs  of  such  corporation  at  the  time  of  its  dissolution,  by  what- 
ever name  they  may  be  known  in  law,  shall  be  the  trustees  of  the  credit- 
ors and  stockholders  of  the  corporation  dissolved,  and  shall  have  full 
power  to  settle  the  affairs  of  the  corporation,  collect  and  pay  the  out- 
standing debts,  and  divide  among  the  stockholders  the  moneys  and  other 
property  that  shall  remain,  after  the  payment  of  debts  and  necessary 
expenses.  By  a  subsequent  section,  the  persons  so  constituted  trustees, 
are  authorized  to  sue  for  and  recover,  the  debts  and  property  of  the  dis- 
solved corporation,  by  the  name  of  the  trustees  of  such  corporation. 
describing  it  by  its  corporate  name,  and  are  made  jointly  and  severally 
responsible  to  the  creditors  and  stockholders  of  such  corporation,  to  the 
extent  of  its  property  and  effects  that  shall  come  into  their  hands.4 

It  is  quite  obvious  that  the  settlement  of  such  matters  cannot  in  gen- 
eral be  accomplished  without  the  aid  of  a  court  of  equity. 

The  non-payment  of  its  debts  does  not  at  common  law  work  a  dissolu- 


1  Id   160.    McLaren  v.  Pennington,  1        MR.  S.  580,  §  1G     L.  of  1847,  p.  221, 
Paige,  111.    Bac.  Abr.  tit.  Corporation,    §47. 

Ie;ter  (G.)  '  L.  of  1838,  p.  254,  ch.  2G2. 

4  1  R.  S.  600,  601,  §§  9,  10 


744  Corporate,  ns.  [Ch.  11. 

tion  of  a  corporation.1     The  mode  of  pioceeding  against  insolvent  cor 
porations  will  be  pointed  out  in  the  next  section. 

As  a  corporation  may  hold,  purchase  and  convey  such  real  and  person- 
al estate,  as  may  be  required  for  its  purposes,  so  it  may  mortgage  the 
same  to  raise  money  for  any  legitimate  object.  A  railroad  corporation  is 
expressly  authorized  by  the  general  act  of  1850,  to  borrow  such  sums  of 
money,  from  time  to  time,  as  may  be  necessary  for  completing  and  finish- 
ing, or  operating  their  railroad,  and  to  issue  and  dispose  of  their  bonds 
for  any  amount  so  borrowed,  and  to  mortgage  their  corporate  property  and 
franchises  to  secure  the  payment  of  any  debt  contracted  by  the  compa- 
ny. This  provision  is  made  applicable  to  all  other  railroad  corporations, 
and  the  right  of  mortgaging  the  franchises  of  the  corporation  is  recog- 
nized by  the  act  of  1853.2  The  franchise  of  the  corporation  is  that  po- 
litical right,  derived  from  the  act  of  incorporation,  by  which  the  corpora- 
tion is  enabled  to  manage  its  own  affairs,  and  to  hold  property  without  the 
perplexing  intricacies,  the  hazardous  and  endless  necessity  of  perpetual 
conveyances  for  the  purpose  of  transmitting  it  from  hand  to  hand.  It  is 
chiefly  for  the  purpose  of  clothing  bodies  of  men  in  succession,  with  these 
qualities,  that  corporations  were  invented  and  are  in  use.3  The  sale  by 
virtue  of  a  decree  granted  on  a  mortgage  foreclosure  of  the  franchises 
and  corporate  property  vests  in  the  purchaser  the  right  to  use  and  enjoy 
both,  as  the  same  were  used  and  enjoyed  when  the  mortgage  was  given ; 
without  any  liability  for  debts  or  obligations  created  subsequent  to  the 
mortgage.  This  is  a  legitimate  inference  from  the  power  to  mortgage  the 
franchise  and  corporate  propert}'.  The  corporation  still  subsists  notwith- 
standing the  foreclosure,  and  its  business  can  be  carried  on  under  the 
original  charter,  by  the  purchasers  or  their  assigns.4 

•  Slee  v.  Bloom,  5  J.  Ch.  E.  379,  381.  »  Per  Marshall,  01.  J.  in  Dartmouth 

The  Trustees  of  Vernon  v.  Hills,  6  Cowen,  College  v.  "Woodward,  4  Wheat.  636. 

26.     Dartmouth  College  v.  "Woodward,  4  4  Wilde  v.  Jenkins,  4  Paige,  431,  4SJJ. 

Wheat.  698.  2  Kent's  Com.  312. 

2  L.  of  1850,  p.  225,  §  28,  sub.  10,  §49. 
«*  of  1853,  p.  966,  §  2. 


(Tli.  11.]  Proceedings  against,  in  Equity.  745 


SECTION  II. 

OF    PROCEEDINGS     AGAINST     CORPORATIONS     IN     EQUITY,    UNDER    THE     REVISED 

STATUTES. 

We  have  hitherto  spoken  of  the  remedy  in  equity  against  corporations, 
which  does  not  impair  the  existence  of  the  corporation,  and  which  only 
acts  upon  the  conduct  of  the  corporation  or  its  officers,  with  reference  to 
property,  or  the  rights  and  equities  of  others.  We  proceed  now  to  notice 
the  more  enlarged  jurisdiction  in  equity,  conferred  by  statute,  and  which 
may  be  exerted  against  the  corporation  itself,  or  its  trustees  or  managing 
agents,  in  a  more  summary  and  comprehensive  way.  The  object  of  the 
legislature  seems  to  have  been  to  give  the  court  of  chancery  in  this  state, 
the  same  power  that  is  exercised  by  that  court  in  England  in  cases  of 
charitable  corporations,  and  in  other  cases  ;  and  to  confer  upon  the  court 
a  superintending  or  visitatorial  power  over  all  civil  corporations,  not  ex- 
cepted from  its  provisions.1  It  thus  confers  upon  that  court  the  power 
which  Chancellor  Kent  declined  to  exercise  in  the  Attorney  General  v. 
The  Utica  Insurance  Company,  (supra.) 

The  jurisdiction  to  vacate  and  annul  an  act  of  incorporation  on  the 
ground  that  it  was  passed  upon  some  fraudulent  suggestion  or  conceal 
went  of  a  material  fact,  made  by  the  persons  incorporated  by  such  act, 
or  made  with  their  consent  or  knowledge,  belonged  to  the  supreme  court, 
and  was  exercised  by  writ  of  scire  facias,  in  cases  where  the  legislature 
specially  directed  the  attorney  general  to  prosecute  the  same.2  In  case 
any  association  or  number  of  persons,  should  act  within  this  state,  as  a 
corporation,  without  being  legally  incorporated  ;  or  in  case  any  corporate 
body  should  offend  against  any  of  the  provisions  of  the  act  or  acts  creat- 
ing, altering  or  renewing  such  corporation  ;  or  2,  violate  the  provisions 
of  any  law,  by  which  such  corporation  shall  have  forfeited  its  charter  by 
misuser  ;  or  3,  whenever  it  shall  have  forfeited  its  privileges  and  franchises 
by  non  user  ;  or  4,  whenever  it  shall  have  done  or  omitted  any  acts  which 
amount  to  a  surrender  of  its  corporate  rights,  privileges  and  franchises ; 
or  5,  whenever  it  shall  exercise  any  franchise  or  privilege  not  conferred 
upon  it  by  law,  authority  was  given  by  the  Revised  Statutes,  to  the  at- 
torney general  to  file  an  information  in  the  nature  of  a  quo  warranto  up- 
on his  own  relation,  with  a  view  to  a  judgment  of  ouster,  and  dissolution 

1  3  R.  S.  755,  Re-ser's  Notes.  a  2  R.  S.  579,  §  13. 

Eq.  Jen  94 


716  Corporations.  [Ch.  11 

of  the  corporation.1  The  supreme  court  alone  had  jurisdiction  in  such 
cases.  But  with  a  view  to  prevent  any  injury  to  the  public  being  done 
by  such  persons  or  body  corporate,  pending  the  proceedings  in  the  su. 
prerae  court,  the  Revised  Statutes  also  authorized  the  chancellor,  upon  a 
bill  filed  by  the  attorney  general,  to  restrain  by  injunction  any  corpora- 
tion from  assuming  or  exercising  any  franchise,  liberty,  or  privilege,  or 
transacting  any  business  not  allowed  by  the  charter  of  such  corporation ; 
and  in  the  same  manner  to  restrain  any  individuals  from  exercising  any 
corporate  rights,  privileges,  or  franchises,  not  granted  to  them  b}r  any 
law  of  this  state.  The  injunction  was  allowed  to  be  issued  on  proper 
proof  before  answer,  and  after  the  coming  in  of  the  answer,  to  be  contin- 
ued until  judgment  at  law  should  have  been  had.2 

Though  the  proceeding  by  scire  facias,  quo  warranto  and  informa- 
tions in  nature  of  quo  warranto,  has  been  abolished  by  the  code,  and  new 
remedies  substituted,  the  foregoing  provisions  in  relation  to  an  injunction 
from  a  court  of  equity,  pending  the  proceeding  at  law,  do  not  seem  to  be 
abrogated  ;  nor  to  be  incompatible  with  the  new  remedies  provided.3  It 
is  a  proceeding  merely  auxiliary  to  the  more  important  remedy  pros- 
ecuted at  law,  though  the  practice  with  respect  to  it,  is  modified  by  the 
code.4 

But  a  court  of  equity  has  now  by  statute,  jurisdiction  over  directors, 
managers  and  other  trustees  and  officers  of  corporations,  and  over  insol- 
vent corporations  in  a  variety  of  cases,  and  as  incidental  to  this  latter 
jurisdiction,  may,  in  a  proper  case,  adjudge  a  corporation  to  be  dissolved.5 

Thus,  by  the  33d  section,  the  chancellor  has  jurisdiction  over  direc- 
tors, managers  and  other  trustees  and  officers  of  corporations,  1.  To  com- 
pel them  to  account  for  their  official  conduct,  in  the  management  and 
disposition  of  the  funds  and  property  committed  to  their  charge ;  2,  To 
decree  and  compel  payment  by  them,  to  the  corporation,  whom  they  rep- 
resent, and  to  its  creditors,  of  all  sums  of  money,  and  of  the  value  of  all 
property  which  they  may  have  acquired  to  themselves,  or  transferred  to 
others,  or  may  have  lost  or  wasted,  by  any  violation  of  their  duties  as 
such  trustees  ;  3.  To  suspend  any  such  trustee  or  officer  from  exercising 
his  office,  whenever  it  shall  appear  that  he  has  abused  his  trust ;  4.  To 
remove  any  such  trustee  or  officer  from  his  office,  upon  proof  or  conviction 
of  gross  misconduct ;  5.  To  direct  new  elections  to  be  held  by  the  body 
or  board  duly  authorized  for  that  purpose,  to  supply  vacancies  created  by 

1  2  R.  S.  5S1,  583.  *  Id.  §§  218,  219. 

*  2  R.  462,  §  81,  32.  6  2  R.  S.  462,  §  33,  p.  463,  §  38.    Ward 

•  Code  of  Procedure,  428-447.  v.  Sea  Insurance  Co.  7  Paige,  298. 


Ch.  11.]  Proceedings  against,  in  Equity.  747 

such  removal ;  6.  In  case  there  be  no  such  body  or  board,  or  all  the  mem- 
bers of  such  board  be  removed,  then  to  report  the  same  to  the  governoi 
who  shall  be  authorized,  with  the  consent  of  the  senate,  to  fill  such  vacan- 
cies ;  7.  To  set  aside  all  alienations  of  property  made  by  the  trustees  or 
other  officers  of  any  corporation,  contrary  to  the  provisions  of  such  incor- 
poration, in  cases  where  the  person  receiving  such  alienation  knew  the 
purpose  for  which  the  same  was  made. 

The  jurisdiction  under  the  preceding  section  was  exercised  by  the 
court  of  chancery,  as  in  ordinary  cases,  by  bill  or  petition  as  the  case 
might  require  or  as  the  chancellor  might  direct ;  and  it  was  so  exercised 
either  at  the  instance  of  the  attorney  general,  prosecuting  in  behalf  of 
the  people  of  this  state,  or  at  the  ir  stance  of  any  creditor  of  such 
corporation,  or  at  the  instance  of  any  trustee  or  other  officer  of  such  cor- 
poration, having  a  general  superintendence  of  its  concerns.1 

The  union  of  law  and  equity  in  the  same  court  and  the  abolition  of 
the  former  pleadings,  will  doubtless  lead  to  some  changes  in  the  appli- 
cation of  these  remedies ;  but  the  rights  and  substantial  remedies  still 
remain.  By  the  code,  a  proceeding  formerly  belonging  to  the  criminal 
side  of  the  court  has  been  converted  into  a  civil  action.  Though  the 
name  is  thus  changed,  the  injury  to  be  redressed,  and  the  nature  of  the 
relief  afforded,  remain  essentially  as  they  were  before.2 

The  New- York  Revised  Statutes  contain  numerous  regulations,  with 
respect  to  insolvent  corporations,  and  to  restrain  the  abuses  of  their 
powers,  by  corporations  generally.  Religious  corporations,  and  a  few 
other  corporations  of  a  kindred  character,  are  excepted  from  the  operation 
of  these  provisions.3  These  statutes  are  in  truth  statutes  of  bankruptcy, 
in  relation  to  the  corporations  to  which  they  are  applicable,  and  are  an 
expansion  and  improvement  upon  our  earlier  legislation  upon  this  sub- 
ject.4 The  court  of  chancery  was,  at  an  earlier  day,  authorized  in  cer- 
tain cases,  to  decree  the  dissolution  of  certain  insurance  companies,  and  to 
direct  a  distribution  of  their  assets,  among  their  creditors  and  stock- 
holders, through  the  intervention  of  trustees,  appointed  by  the  court.5 

The  existing  statutes  provide  for  two  classes  of  cases  ;  the  one  on  the 
application  of  the  attorney  general,  in  behalf  of  the  state,  or  of  a  creditor 
or  stockholder  of  such  corporation,  upon  bill  or  petition,  setting  forth  its 
insolvency,  or  other  facts  authorizing  the  interposition  of  the  court ;«  and 

1  2  R.  S.  4S3,  §  35.  *  L.  of  1825,  p.  448,  ch.  325. 

a  Compare  2  R.S.  579,  §13,  with  Code,  6  L.  of  1817,  p.  150,  ch.  146.    L.  of 

|  429,  and  2  R.  S.  583,  §  39,  with  Code,  §  1821,  p.  HI,  ch.  148. 

430.  •  2  R.  S.  464,  §  40. 

»2R.  S.  466,  §57.     1  R.  S.  605  «  11. 


748  Corporations.  [Ch.  11. 

the  other,  on  the  application  of  the  directors,  trustees  or  other  officers 
having  the  management  of  the  concerns  of  the  corporation,  for  its  disso- 
lution on  the  ground  that  its  property  has  become  so  reduced  by  losses 
or  otherwise,  that  it  will  not  be  able  to  pay  all  its  just  demands,  or  afford 
reasonable  security  to  those  who  may  deal  with  it.1  The  object  of  both 
statutes  is  to  secure  a  ratable  distribution  of  the  property  of  the  corpo- 
ration among  its  creditors,  subject  to  the  legal  priorities  of  the  United 
States.2 

In  the  first  class  of  cases,  whenever  any  incorporated  company  shall 
have  remained  insolvent  for  one  whole  year  ;  or  for  one  year  shall  have 
neglected  or  refused  to  pay  and  discharge  its  notes  or  other  evidences  of 
debt ;  or  for  one  year  shall  have  suspended  the  ordinary  and  lawful 
business  of  such  corporation ;  it  shall  be  deemed  to  have  surrendered  the 
rights,  privileges  and  franchises  granted  by  any  act  of  incorporation,  or 
acquired  under  the  laws  of  the  state,  and  shall  be  adjudged  to  be  dissolved.3 
In  Sice  v.  Bloom,  (supra,)  the  court  of  errors  held  that  a  bill  by  a  creditor 
could  be  sustained,  against  individual  stockholders,  who  were  made  liable 
for  the  debts  of  the  corporation,  on  its  dissolution,  without  having  the 
dissolution  declared  by  any  judicial  proceeding.4  This  decision  as  appli- 
cable to  that  case,  and  in  favor  of  the  remedy  of  the  creditors,  against 
stockholders  made  personally  liable  by  the  terms  of  the  charter,  for  tho 
debts  of  the  corporation,  was  well  enough.  But  the  present  statute  evi- 
dently contemplates,  that  the  court  of  equity,  whose  aid  is  invoked  in 
favor  of  the  creditor,  under  that  section,  shall  dissolve  the  corporation, 
if  the  facts  be  made  out  which  the  section  contemplates  to  exist,  and 
appoint  a  receiver  to  wind  up  the  affairs  of  the  company  and  to  distribute 
its  surplus  funds  if  any,  amongst  its  stockholders.5  The  decree  for  clos- 
ing the  affairs  of  the  insolvent  corporation  under  the  statute,  seems 
necessarily  to  be  based  upon  the  decree  for  a  dissolution  of  the  cor 
poration.6 

In  the  other  class  of  cases,  where  the  application  is  made  for  a  dissolu- 
tion of  the  corporation  by  its  own  officers,  the  statute  has  very  properly 
declared,  that  all  sales,  assignments,  transfers,  mortgages  and  convey- 
ances of  any  part  of  the  estate  real  or  personal,  including  things  in 
action,  of  ever}7  such  corporation,  made  after  the  filing  of  the  petition  for 
a  dissolution  thereof,  in  payment  of  or  as  a  security  for  any  existing  or 


1  2  R.  S.  467,  §  58  et  seq.  6  Ward.  v.  Sea  Ins.  Co.  7  Paige,  298. 

*  2  R.  S.  470,  §  79.  6  Mickles  v.  The  Rochester  City  Bank, 
■  2  R.  S.  463,  §  38.  11  Paige,  126. 

*  Slett  v   Bloom.  19  J.  R.  456. 


Ch.  11.]  Proceedings  against,  in  Equity.  749 

prior  debt,  or  fcr  any  other  consideration,  and  all  judgments  confessed 
by  such  corporation  after  that  time,  shall  be  absolutely  void  as  against 
the  receivers  •who  may  be  appointed  on  such  petition,  and  as  against  the 
creditors  of  such  corporation.1 

With  regard  to  corporations  having  banking  powers,  or  having  the 
oower  to  make  loans  on  pledges  or  deposits,  or  authorized  by  law  to 
nake  insurances,  if  the  same  shall  become  insolvent,  or  unable  to  pay 
their  debts,  or  shall  have  violated  any  of  the  provisions  of  their  act  of 
incorporation,  or  of  any  other  act  binding  on  such  corporation,  the  court 
of  chancery,  now  the  supreme  court,  is  authorized  by  injunction  to  restrain 
such  corporation  and  its  officers  from  exercising  any  of  its  corporate 
rights,  privileges  or  franchises,  and  from  collecting  or  receiving  any  debts 
or  demands,  and  from  paying  out  or  in  any  way  transferring  or  deliver- 
ing to  any  person  any  of  the  moneys  or  effects  of  such  corporation,  until 
such  court  shall  otherwise  order.2  The  injunction  in  such  case  may  be 
granted  on  the  application  of  the  attorney  general,  in  behalf  of  the  state, 
or  of  any  creditor  or  stockholder  of  such  corporation,  upon  bill  or  petition.3 

There  are  still  more  stringent  provisions  in  relation  to  all  corporations, 
not  expressly  excepted,  such  as  corporations  for  a  library,  or  a  religious 
society,  or  moneyed  corporations  otherwise  provided  for,  which  interdict, 
under  certain  circumstances,  any  transfer  or  assignment  of  their  property. 
Thus,  whenever  any  incorporated  company  shall  have  refused  the  pay- 
ment of  any  of  its  notes,  or  other  evidences  of  debt,  in  specie,  or  lawful 
money  of  the  United  States,  it  shall  not  be  lawful  for  such  company,  or 
any  of  its  officers,  to  assign  or  transfer  any  of  the  property  or  choses  in 
action  of  such  company,  directly  or  indirectly  for  the  payment  of  any 
debt :  and  it  shall  not  be  lawful  to  make  any  transfer  or  assignment  in 
contemplation  of  the  insolvency  of  such  company,  to  any  person  or  persons 
whatever;  and  every  such  transfer  or  assignment  to  such  officer,  stock- 
holder or  other  person,  or  in  trust  for  them  or  their  benefit,  shall  be  ut- 
terly void  ;  and  whenever  any  incorporated  company  shall  have  remained 
insolvent  for  one  whole  year,  or  for  one  year  shall  have  neglected 
or  refused  to  redeem  its  notes  or  other  evidences  of  debt,  in  specie  or 
other  lawful  money  of  the  United  States,  or  for  one  year  shall  have  sus- 
pended the  ordinary  business  of  such  incorporation,  such  company  shall 
thereupon  be  deemed  and  adjudged  to  have  surrendered  the  rights,  privi- 
leges and  franchises,  granted  by  any  act  of  incorporation,  and  shall  be 
deemed  to  be  dissolved.4 

>  2  R.  S.  460, .§71.  Md.  §40. 

•  2  R.  S  463,  §  39.  4  1  R.  S.  603,  §  4. 


750  Corporations.  [Ch.  11 

This  statute  has  been  held  not  to  be  confined  to  moneyed  corporations, 
but  to  embrace  all  corporations  not  expressly  excepted  from  its  operation. 
And  thus  it  was  held  to  extend  to  the  act  incorporating  the  New- York 
and  Erie  Railroad  Company,  notwithstanding  the  charter  of  the  company 
expressly  referred  to,  and  was  made  subject  to  certain  other  provisions 
of  the  Revised  Statutes,  specifically  mentioned,  and  was  silent  as  to  the 
foregoing.1 

Although  a  corporation  is  deemed  to  have  surrendered  its  charter  in 
consequence  of  non-user,  or  by  continued  insolvency,  or  the  non-payment 
of  its  notes  or  other  evidences  of  debt  for  one  whole  year,  yet  it  does  not 
become  ipso  facto  dissolved.  But  it  continues  to  exist  until  its  dissolu- 
tion is  judicially  declared,  by  a  decree  of  the  court  of  chancery,  or  by  the 
judgment  of  the  supreme  court  upon  a  quo  warranto.  And  until  such 
decree,  or  judgment,  any  of  the  creditors  of  such  corporation  may  proceed 
by  suit,  against  it  or  its  property,  to  obtain  satisfaction  of  their  debts, 
unless  restrained  by  injunction.12 

In  a  bill  filed  by  a  creditor  under  the  statute,  to  obtain  a  decree  dis- 
solving a  corporation,  and  distributing  its  effects  among  its  creditors  and 
stockholders,  the  corporation  itself  is  a  necessary  party.3  But  where 
the  property  of  the  company  is  all  exhausted,  and  the  bill  is  filed  for  the 
sole  purpose  of  compelling  its  stockholders  to  pay  the  corporate  debts  out 
of  their  individual  property,  it  seems  the  corporation  is  not  a  necessary 
party  although  its  dissolution  ha3  not  been  judicially  declared.4 

The  relation  which  stockholders  of  an  incorporation  bear  to  each  other 
with  respect  to  the  corporate  property  is  not  that  of  tenants  in  common, 
or  partners,  either  before  or  after  the  dissolution.  Before  the  dissolution 
the  whole  title  is  in  the  corporation  itself,  as  the  legal  owner  ;  and  upon 
its  dissolution,  if  no  other  provision  is  made,  the  whole  title  vests  in  the 
directors  or  trustees  then  in  office,  as  trustees  for  the  creditors  and  stock- 
holders, under  the  general  provisions  of  the  Revised  Statutes.5 

We  pass  now  to  some  other  matters  connected  with  the  liability  of  cor- 
porations in  equity,  and  the  mode  of  enforcing  them. 

With  respect  to  the  remedy  of  a  judgment  creditor  of  a  corporation 
whose  execution  has  been  returned  unsatisfied  in  part  or  in  whole,  it  has 
Deen  decided  that  he  cannot  resort  to  a  creditor's  bill  and  thus  acquire  a 
lien  upon  the  effects  of  the  corporation  in  his  own  favor  in  preference  to 

1  Bo  wen  v.  Leare,  5  Hill,  221.  4  Id. 

2  Mickles  v.  The  Kochester  City  Bank,  6  1  R.  S.  600,  §  9.  Mickles  v.  The 
11  Paige,  118.  Rochester  City  Bank,  11  Paige,  128. 

•Id 


Ch.  11.]  Proceedings  against,  in  Eq.uity.  751 

other  creditors.  But  his  remedy  is  under  the  statute  to  obtain  a  seques- 
tration of  the  stock,  property,  things  in  action  and  effects  of  the  corpora- 
tion, and  the  appointment  of  a  receiver.1  This  proceeding  may  he  by  hill 
or  petition  ;  but  a  proceeding  by  bill  is  the  preferable  course,  if  the  cred- 
itor intends  to  proceed  against  the  directors  or  stockholders,  to  charge 
them  personally,  in  case  of  deficiency  of  the  corporate  property  to  pay  the 
debts  of  the  corporation.  And  the  stockholders  of  an  insolvent  corpora- 
tion, who  have  not  paid  the  full  amount  of  their  stock,  are  liable  to  the 
creditors  of  the  corporation  to  the  extent  of  what  remains  unpaid,  upon 
their  several  shares  of  such  stock  ;  or  of  so  much  thereof  as  may  be 
necessary  to  supply  the  deficiency  in  the  assets  of  the  corporation  to  pay 
its  debts.2  The  receiver  appointed  under  a  decree  sequestrating  the 
effects  of  the  corporation,  is  vested  with  all  the  estate  real  and  personal, 
of  the  corporation,  from  the  time  of  filing  his  security,  and  becomes  the 
trustee  of  the  estate  for  the  benefit  of  the  creditors  of  such  corporation 
and  of  its  stockholders.3  He  possesses  by  statute,  the  same  power  and 
authority  as  are  conferred  by  law  upon  trustees  to  whom  an  assign- 
ment of  the  estate  of  an  insolvent  debtor  may  be  made  pursuant  to  the 
provisions  of  the  fifth  chapter  of  the  second  part  of  the  Revised  Statutes.4 
Those  trustees  are  required  by  law  to  make  an  equal  distribution  among 
the  creditors,  after  satisfying  the  claims  which  are  preferred  by  the  laws 
of  the  United  States.5 

Independent^  of  the  Revised  Statutes,  and  of  the  general  doctrines 
of  a  court  of  equity,  the  directors  of  a  moneyed  or  other  joint  stock  cor- 
poration, who  willfully  abuse  their  trust,  or  misapply  the  funds  of 
the  company,  by  which  a  loss  is  sustained,  are  personally  liable  as 
trustees  to  make  good  the  loss.  They  are  equally  liable  if  they  suffer 
tl  «■  corporate  funds  or  propert}^  to  be  lost  or  wasted  by  gross  negligence 
and  inattention  to  the  duties  of  their  trust.  And  a  court  of  equity  has 
power  to  call  them  to  account.  The  directors  are  the  trustees  or  manag- 
ing agents,  and  the  stockholders  are  the  cestui  que  trusts,  and  have  a 
joint  interest  in  all  the  property  and  effects  of  the  corporation.6  As 
was  held  by  Lord  Ilardwicke,  in  a  memorable  case,  a  court  of  equity  can 


1  2  II.  S.  403,  §  36.     Lowene  v.  Amer.  Sandf.  Ch.  R.  257.     L.  of  1854,   p.  502, 

Fire  Ins.  Co.  6  Paige,  482.     Morgan  v.  ch.  224. 

N.  T.  and  Albany  R.  R.  10  id.  291.  *  2  R.  S.  40  et  seq. 

1  Id.  6  Id. 

'  2  R.  S.  463,  §  88,  460,  §  67.     Laws  of  "Robinson   v.   Smith,    3   Paige,   2S1 

1852,  p.  67,  ch.  71,     Mann  v.  Rents,  2  Cunningham  v.  Pell,  5  id.  607. 


752  Corporations.  (Cn.  LI 

lay  hold  of  every  breach  of  trust,  be  it  in  a  public  or  private  capacity.' 
As  already  intimated,  the  Revised  Statutes  extended  the  principles  which 
vere  formerly  applied  to  charitable  corporations  in  England,  to  the  juris- 
diction of  the  court  of  chancery  in  this  state  over  corporations.  In  some 
respects  they  are  merely  declaratory,  and  in  others  they  are  introduc- 
tory of  new  and  salutary  rules. 

In  New- York  there  are  numerous  corporations  where  the  principle  of 
personal  liability  of  the  stockholders  exists,  either  concurrently  with  that 
of  the  corporation,  or  as  auxiliary  to  it.  To  collect  a  list  of  these  vari- 
ous charters,  and  point  out  the  distinctions  between  them  and  the  practices 
to  which  they  have  given  rise,  is  foreign  from  the  object  of  this  treatise. 
Some  of  these  have  given  rise  to  much  litigation  and  to  many  conflicting 
decisions.2 

If  by  the  act  of  incorporation,  the  stockholders  be  jointly  and  sever- 
ally personally  liable  for  the  payment  of  all  debts  or  demands  contracted 
by  the  corporation,  and  be  liable  to  be  prosecuted  therefor,  after  a  judg- 
ment for  such  demand  shall  have  been  obtained  against  the  corporation, 
and  an  execution  thereon  shall  have  been  issued  and  returned  unsatisfied 
in  whole  or  in  part,  or  the  said  corporation  shall  have  been  dissolved,  as 
in  the  case  of  the  stockholders  of  the  Rossie  Galena  Company  and  Ros- 
sie  Lead  Mining  Company,3  still  it  is  obvious,  that  though  the  creditoi's 
remedy  be  at  law,  the  stockholder  who  shall  have  been  compelled  to  pay 
the  debt,  has  no  recourse  but  to  a  court  of  equity  to  compel  contribution 
from  those  who  are  equally  liable  with  himself.  Under  the  charter  of 
the  Rossie  Lead  Mining  Company,  no  stockholder  was  liable  but  he  who 
was  a  stockholder  at  the  time  the  debt  was  contracted.4  A  party  who 
became  a  stockholder  after  the  debt  was  contracted,  was  not  liable  for  such 
debt.  Hence,  it  was  held  that  creditors  of  the  company  whose  debts  had 
been  contracted  by  such  company  at  different  times,  having  no  common 
interest  in  the  individual  liability  of  different  stockholders,  could  not  lit- 
igate their  claims  against  such  stockholders  in  a  single  suit.5 

The  stockholders,  too,  in  such  a  company,  being  individually  liable  for 
the  whole  amount  of  each  debt  contracted  while  they  were  stockholders, 

1  The  Charitable  Corporation  v.  Sutton,  119.     Corning  v.  McCullough,  1  Corast 

2  Atk.  405.  47. 

■  Moss  v.  McCullough,  5  Hill,  131.     7  8  Laws  of  1837,  pp.  441,  445,  chs.  306, 

Barb.   270.     Allen  v.  Sewall,    2   Wend.  401. 

327.    Moss  v.  Oakley,  2  Hill,  205.    Bailey  4  Moss  v.  Oakley,  2  Hill,  265. 

v.  Baneker,  3  id.  188.     Adderly  v.  Storm,  B  Jadson  v.  The  Rossie  Galena  Co.  9 

6  id.  624.     Worrall  v.  Judson,  5  Barb.  Paige,  598. 
210.     Harger  v.   McCullough,  2   Denio, 


Oh.  ll.J  Proceedings  against,  in  Equity.  75" 

they  are  not  entitled  to  an  injunction  to  restrain  the  prosecution  of  suits 
against  them,  and  to  compel  the  creditors  to  come  in  and  prove  their 
debts  under  the  decree  in  the  first  suit.  It  is  otherwise  under  the  Re- 
vised Statutes,  which  render  the  directors  jointly  liable  to  the  creditors 
and  stockholders  for  losses  occasioned  by  breach  of  duty  ;  and  which  ren- 
ders the  stockholders  liable  to  the  creditors,  in  cases  of  fraudulent  insol- 
vencies, to  the  extent  of  their  stock,  where  there  is  a  deficiency  in  the 
effects  of  the  corporation  which  could  not  be  charged  upon  or  collected 
from  the  directors  who  were  responsible  for  the  fraud.  In  such  a  case 
no  one  of  the  creditors  could  collect  the  whole  of  the  debt  from  those  who 
were  liable  to  all  the  creditors  collectively  to  a  limited  amount.  The 
proceedings  to  compel  a  ratable  contribution  to  the  amount  of  their  several 
debts,  must,  therefore,  be  analogous  to  the  proceedings  against  the  estate 
of  an  insolvent  testator,  or  intestate,  in  the  hands  of  his  personal  repre- 
sentatives ;  not  only  in  relation  to  the  corporate  effects  but  also  as  to  the 
limited  liabilities  of  the  directors  and  stockholders.1 

Accordingly  it  is  enacted  that  whenever  any  bill  shall  be  filed,  or  any 
application  made  against  a  corporation,  its  directors  or  other  superin- 
tending officers  or  its  stockholders,  according  to  the  provisions  of  title  4  of 
chapter  8,  part  3d  of  the  Revised  Statutes,  the  court  may,  by  injunction, 
on  the  application  of  either  party,  and  at  any  stage  of  the  proceedings, 
restrain  all  proceedings  at  law,  by  any  creditor  against  the  defendants  in 
such  suit :  and  whenever  it  shall  appear  necessary  or  proper,  may  order 
notice  to  be  published,  in  such  manner  as  the  court  shall  direct,  requiring 
all  the  creditors  of  such  corporation  to  exhibit  their  claims  and  become 
parties  to  the  suit,  within  a  reasonable  time,  not  less  than  six  months 
from  the  first  publication  of  such  order,  and  in  default  thereof,  to  be  pre- 
cluded from  all  benefit  of  the  decree  which  shall  be  made  in  such  suit, 
and  from  any  distribution  which  shall  be  made  under  such  decree.2 

Enough  has  been  shown  under  this  head,  to  exemplify  the  jurisdiction 
of  equity  in  respect  to  corporations.  To  pursue  the  subject  more  in  de- 
tail would  be  to  encroach  upon  ground  more  proper  to  be  discussed  in  a 
treatise  upon  the  practice  of  the  courts,  and  upon  subjects  exclusively  of 
legal  cognizance.  The  number  of  corporations  in  this  state,  amenable  in 
some  form  or  other  to  the  jurisdiction  of  equity,  is  vastly  numerous. 
Their  charters,  though  containing  some  provisions  in  common,  are  often 
extremely  dissimilar.     The  amount  of  property  they  own  or  control,  the 

1  Judson  v.  The  Rossie  Galena  Co.  9  Morgan  v.  ST.  Y.  and  Albany  R.  R.  id. 
Paige,  602.     2  R.  466,  §  56.  290.  Mann  v.  Pentz,  3  Comrt.  415.  James 

*  Id.  Matter  of  the  Receiver  of  the  v.  Woodruff,  5  Paige,  541.  2  Denio.  574 
City   Bank   of   Buffalo,    19  Paige,   878. 

Eq.  Jur.  B5 


754 


Corporations. 


[Ch.  11. 


number  of  individuals  engaged  in  the  management  of  tneir  affairs,  and 
the  complicated  nature  of  their  transactions,  give  rise  to  a  great  variety 
of  intricate  and  interesting  questions  for  judicial  decision.  Equity,  by 
means  of  its  general  jurisdiction  over  frauds,  trusts  and  matters  of  ac- 
count, as  well  as  by  the  express  provisions  of  various  statutes,  has  acquired 
cognizance  of  these  matters,  sometimes  concurrently  with  courts  of  law, 
but  more  frequently,  by  reason  of  the  remedy  at  law,  being  altogether 
inadequate.  A  thorough  knowledge  of  the  subject  cannot  be  acquired 
without  an  intimate  acquaintance  with  an  extensive  mass  of  legislation . 
and  with  the  law  of  corporations  generally,  and  the  decision  of  our  courts 
upon  the  various  points  which  have  arisen  and  been  decided. 


INDEX. 


A 

ABATEMENT, 

of  legacies,  when  necessary,  556. 
what  legacies  abate  and  what  not,  557,  558. 
ABSOLUTE, 

and  conditional  legacies,  522.     See  Legacy  and  CoNDiTuera. 
ACCESSIONS, 

industrial,  when  recoverable,  311. 
and  when  not,  312. 
ACCIDENT, 

relief  in  cases  of,  51. 
meaning  of  term,  51. 
relief  in  cases  of  lost  bonds,  or  negotiable  securities,  52.  53. 

to  correct  error  in  deed,  54,  55. 
when  indemnity  required  as  a  condition  of  relief,  52,  53 
relief  in  cases  of  penalties,  55. 

breach  of  conditions  subsequent,  56. 

but  not  \n  case  of  conditions  precedent,  57. 

confusion  of  boundaries,  56. 
effect  of,  as  to  conditions  precedent  and  subsequent,  56. 

stipulated  damages,  56. 
if  party  voluntarily  destroy  the  instrument,  no  relief,  54. 
by  death  of  master  of  an  apprentice,  55. 

no  relief  unless  the  other  party  can  be  restored  to  as  good  a  condition,  &c.  5fl, 
no  relief  to  tenant,  when  premises  destroyed  by  fire,  56. 
nor  against  accident,  happening  by  party's  own  gross  negligence,  57. 
no  relief  against  forfeiture  under  by-law,  57. 
nor  against  a  forfeiture  of  a  lease  for  willful  waste,  58. 
nor  against  the  judgment  of  arbitrators,  58. 
nor  against  a  failure  to  make  a  further  codicil  to  a  will,  58. 
grounds  of  equity  jurisdiction  in  cases  of,  59. 
ACCOUNT, 

antiquity  of  action  at  law  in,  85. 
in  what  cases  it  lay,  85,  89. 

(755) 


756  Index. 

ACCOUNT— continued. 

statute  concerning,  85,  80. 

difficulty  of  the  action  at  law,  87. 

ground  of  jurisdiction  in  equity,  88,  90. 

in  case  of  mutual  accounts,  90. 

concurrent  jurisdiction,  88. 

in  cases  between  landlord  and  tenari  91 
mines,  91. 
■when  several  estates  involved,  91,  92. 

■when  there  is  no  mutuality  of  dealings,  or  other  relief  wanted,  equity  do©« 
not  interpose,  91. 

■where  partial  payments  have  been  made,  how  appropriated,  92-100.    See 
Appropriation  of  Payment. 

in  case  of  partnership  and  changing  the  firm,  101. 
on  accession  of  new  partner,  103. 

in  case  of  agency,  tenants  in  common,  &c.  104. 

apportionment  in,  127.    See  Apportionment. 

stated  account,  how  and  when  opened,  142,  143. 

court  not  inclined  to  open  accounts  of  long  standing,  143. 

limitation  of  the  action,  144. 
ACCUMULATION", 

of  personal  property,  how  long,  477. 
ADMINISTRATION, 

and  marshaling  assets,  561,  502. 

order  of  payment,  563,  564. 

as  between  neir  ana  devisee,  565. 

when  personal  estate  will  be  applied  in  favor  of  the  heir,  565,  568. 

■when  bond  and  mortgage  are  given  for  the  same  debt,  567. 

when  mortgagee  must  look  solely  to  the  land,  568. 
AGENCY, 

application  of  payments  in  cases  of,  104. 
AGENT, 

bound  to  keep  accounts,  104. 

in  case  of  gross  neglect,  liable  to  costs,  104. 

must  not  confound  his  own  and  his  principal's  accounts,  104. 

in  cases  of  tenants  in  common,  104. 

in  cases  of  lien,  105. 

employed  to  sell,  cannot  himself  be  the  purchaser,  189,  603. 
to  purchase,  cannot  himself  be  the  seller,  189,  603. 

same  as  to  sub-agent,  189. 

transactions  between  agent  and  principal,  how  viewed  in  equity,  189. 190,  60S. 

when  treated  as  a  trustee  for  his  principal,  190,  603,  604. 

when  cannot  interplead  his  principal,  816. 
AGREEMENT, 

what  is  necessary  to  make  it  valid,  170,  194. 

when,  and  between  what  parties,  watched  with  jealousy,  179. 

when,  and  by  whom,  set  aside  for  imbecility  of  mind,  195.  198. 


Index.  757 

AGREEMENT— continued. 

specific  performance  of,  260.     See  Specific  Performance. 

to  give  a  mortgage,  when  operative  as  a  lien,  442. 

when  within  the  statute  of  frauds,  280,  281. 

when  agreements  within,  will  he  specifically  enforced,  281,  282  et  seq.    Set 
Specific  Performance. 

when  admitted  in  the  answer,  enforced,  282,  383. 

if  in  writing,  not  to  be  contradicted  by  parol,  286. 

except  in  action  to  reform  it,  or  in  cases  of  mistake,  &c.  286. 

puroi  contract  merged  in  written  one,  286. 

rescission  of  by  parol,  a  bar  to  specific  performance,  289. 

re-execution  of,  when  decreed,  300,  301. 

correction  of,  how  and  when  decreed,  300,  301. 

enforced  against  assignee  with  notice,  298,  299. 
ALIMONY, 

ad  interim,  and  permanent,  664-  668.     See  Divorce. 
ALLOWANCES, 

to  trustees,  guardians,  &c.  at  common  law,  183,  184. 
AMBIGUITY, 

of  what  kinds,  and  how  explained,  495. 

when  raised  by  extrinsic  evidence,  explained  by  it,  495. 

the  reason  of  the  rule,  495. 

patent  ambiguity,  what,  495. 

general  rules,  496,  497. 
ANCIENT  LIGHTS, 

when  protected  by  injunction,  394,  395 
APPORTIONMENT, 

meaning  of  the  term,  127. 

of  rents,  how  made,  127,  128. 

an  entire  contract  not  apportionable  at  common  law,  127. 

how  as  to  annuities  and  servants'  wages,  131. 

how  as  to  common,  131, 132,  133. 

assignee  of  lessee  not  liable  for,  after  assignment,  135. 
APPROPRIATION  OF  PAYMENTS, 

in  case  of  payment  the  debtor  has  the  primary  right  to   declare  the  applt- 
cation,  92. 

in  case  he  omits  to  do  so,  then  the  right  devolves  on  the  creditor,  92. 

if  neither  party  declares  it,  then  the  court,  92. 

civil  law  rule,  and  note  from  Domat,  94. 

at  what  time  the  right  to  declare  the  appropriation,  must  be  asserted,  95. 

rnie,  as  stated  in  several  states,  97  to  100. 

points  of  disagreement  stated,  100. 

tendency  of  the  recent  decisions  to  the  civil  law  rule.  100. 

the  law  makes  the  application  to  the  oldest  debt,  98. 

to  the  debt  most  beneficial  to  the  debtor  to  be  relieved  from,  98. 

rule  in  United  States  supreme  court,  98. 

in  case  of  partnership,  on  a  change  of  the  firm,  101. 


76$  Index. 

APPROPRIATION  OF  PAYMENTS— continued. 

law  applies  payments  according  to  order  of  time,  101,  102. 
on  accession  of  a  new  partner,  103. 
in  case  of  agency,  104. 
in  case  of  foreclosure  of  mortgages,  453,  454. 
order  on  a  fund,  when  an  appropriation,  464. 
ARBITRATORS, 

mistake  by,  when  relieved  against,  77. 
ASSETS, 

wasting  of  restrained  by  injunction,  367. 
marshaling  of  and  administration,  561. 
legal  and  equitable,  how  marshaled,  562,  563. 
in  whose  favor  marshaled,  563,  564. 
personal  estate  the  primary  fund,  564,  568. 
ASSENT, 

of  executors  to  a  legacy,  500. 
of  one  of  several  executors,  sufficient,  500. 
not  necessary  to  a  devise  of  land,  500. 
when  equity  will  compel  executors  to  assent,  500. 
ASSIGNMENT, 

to  defraud  creditors,  how  relieved  against,  241. 

in  what  cases  void,  241,  242. 

what  evidence  of  fraud  in,  241. 

when  valid,  though  a  preference  given  among  the  creditors,  245. 

must  devote  the  whole  of  the  debtor's  property  to  pay  his  debts,  245. 

must  relate  to  debts  existing  at  its  date,  242. 

bad,  if  it  imposes  conditions  on  the  creditor,  246. 

the  power  to  declare  preferences  cannot  be  delegated,  246. 

must  be  for  a  lawful  purpose  and  in  good  faith,  247. 

with  authority  for  assignee  to  sell  on  credit,  bad,  248. 

assignee  with  notice  bound  to  execute  agreement  of  assignor,  298,  299. 

of  both  real  and  personal  property,  459. 

general  rules  as  to,  459. 

of  choses  in  action  at  common  law,  460. 

rights  of  assignee  protected  at  law,  460. 

of  a  possibility  coupled  with  an  intent,  461. 

delivery  without  writing,  a  good  assignment,  462. 

a  specialty,  assignable  by  parol,  462. 

equitable  assignments,  how  made,  463,  464. 

what  constitutes,  463. 

for  benefit  of  creditors,  465,  466. 

fraudulent,  relief  as  to,  465-469.    See  Fraud  and  Fraudulent  Assignments, 

241,  242. 
in  contravention  of  law,  void,  472. 
ATTORNEY  AND  CLIENT, 

transactions  between,  how  viewed,  171,  172. 
with  respect  to  matters  not  in  litigation  174. 


Index.  750 

ATTORNEY  AND  CLIENT— continued. 

when  cannot  interplead  each  other,  316,  317 

in  what  cases  they  can,  317. 

disabled  to  purchase  for  himself,  when,  604,  605. 
AUCTION  SALES, 

not  set  aside  for  mere  inadequacy,  265. 

when  relieved  against  for  misdescription,  295. 
AVERAGE, 

doctrine  with  respect  to  constribution,  121. 
AWARDS, 

when  relieved  against  in  equity  and  when  not,  164,  358. 

B 

BILL  OF  DISCOVERY, 

in  aid  of  another  action,  abolished  by  the  code,  42. 

every  action  for  relief  may  be  a  bill  of,  at  the  election  of  the  plaintiff,  42, 
88,  224. 
BILLS  TO  MARSHAL  SECURITIES, 

doctrine  of,  337. 

applies   only  where  plaintiff  and  defendant  are  creditors  of  a  common 
debtor,  338. 

not  enforced  to  the  prejudice  of  third  parties,  339. 
BILLS,  OR  NOTES, 

when  transfer  of,  restrained  by  injunction,  358. 
BILLS  OF  PEACE, 

when  allowed,  323. 

two  classes  of,  323,  324. 

the  distinction  between  same,  325. 

the  right  claimed  must  affect  many  persons,  325. 

when  right  established  after  repeated  trials  at  law,  326. 
BILLS  QUIA  TIMET, 

when  proper,  328. 

in  favor  of  legatee  whose  legacy  is  payable  at  a  future  day,  328,  329.    Set 
Sureties,  Receives,  &c. 
BONDS, 

grounds  of  relief  against  penalties  in,  55,  56. 
BOUNDARIES, 

onfusion  of,  relieved  against,  56. 
BRIDGES, 

when  erection  of,  prevented,  399. 
BUILDING, 

when  restrained  to  prevent  darkening  ancient  lights,  394. 

c 

CANCELLATION 

of  agreements,  when  ordered,  302,  303. 


760  Index. 

C  iVEAT  EMPTOR, 

to  what  applicable,  151,  152. 

rule  of  civil  law,  151,  152. 

when  defects  are  latent,  152. 

the  like  when  patent,  152. 

with  respect  to  real  property,  152. 

as  to  title,  and  quality,  152. 

as  to  demise  of  land  for  agricultural  purposes,  153. 

as  to  demise  of  houses  for  occupation,  rule,  154-156. 

rule  of,  in  case  of  sale  of  goods,  156. 

as  to  quality  and  title,  156  to  158. 
CESTUI  QUE  TRUST.    See  Trusts. 

rights  of,  611,  612. 

when  entitled  to  resale  of  trust  property,  without  showing  fraud,  605,  606 
612. 

remedy  of,  for  breach  of  trust  in  equity,  615. 
CHARGE, 

effect  of,  on  devisee  with  respect  to  the  estate  devised,  485. 

distinction  between,  upon  the  estate,  and  upon  the  devise,  in  respect  thereof 
485,  486. 

on  real  estate  to  pay  debts  or  legacies,  creates  a  trust,  486. 

enforced  by  equity,  486. 

a  power  to  sell  to  pay  debts,  authorizes  a  mortgage  for  the  same,  486. 

by  what  words  a  charge  to  pay  debts  is  made,  487. 

in  what  court  a  legacy  charged  on  land  is  enforced,  500,  560,  565. 
CHARGE  AND  DISCHARGE, 

meaning  of  the  terms.  140. 
CHARITIES, 

doctrine,  and  whence  derived,  569,  570. 

exists  in  this  state  independent  of  statute  of  43  Eliz.  571-575. 

that  statute  never  in  force  here,  573. 

as  to  persons  who  can  hold,  575,  576. 

as  to  corporations,  576. 

effect  of  free  toleration  of  all  religions,  on,  576;  577  et  seq. 

upholding  of,  does  not  affirm  the  truth  of  the  doctrine,  577. 

in  favor  of  doctrines  tending  to  licentiousness,  cannot  be  upheld,  578. 

uncertainty  of  the  recipient  essential  to  a  charity,  580. 

violation  of  the  trust  will  not  revest  the  title  in  the  heir  of  grantor,  581. 

when  an  unincorporated  body  can  take  a  charity,  582. 

doctrine  of  charitable  uses  not  abrogated  by  the  R.  S.,  575,  587,  588. 

property  dedicated  to  the  support  of  the  ministry  cannot  be  diverted,  588. 

the  R.  S.  as  to  perpetuities  does  not  infringe  the  law  of  charity,  587. 

property  given  to  a  charity  cannot  be  diverted  to  other  objects,  even  by  t-b« 
consent  of  a  majority  of  the  beneficiaries,  589,  593. 

intention  of  donor  of  charity,  how  ascertained,  590. 

when  parol  evidence  admissible,  590,  591. 

doctrine  of  ct  pres  sustained,  594-596. 


Index.  761 

CHARITIES— contin  tied. 

whose  object  is  to  subvert  Christianity,  void,  596. 

tending  to  licentiousness  or  breach  of  the  peace,  void,  596. 
CHATTELS, 

agreements  concerning,  when  speciflcally  enforced,  and  when  not,  271,  276 

bequest  of,  for  life,  with  remainder  over,  how  secured,  330,  331. 

when  ordered  to  be  delivered  up,  365. 
CHURCHES.    See  Religious  Corporation,  and  Corporation,  734  to  736,  and  note 
COMMON, 

different  kinds  of,  131,  132. 

when  apportioned,  132. 

when  a  conveyance  of,  operates  as  an  extinguishment,  and  when  not,  133. 
COMPENSATION, 

for  defects,  when  allowed,  290,  291. 

bill  in  equity  will  not  lie  for,  alone,  291. 

it  lies  where  party  puts  it  out  of  his  power  to  perform,  pendente  lite,  309. 

how  damages  are  assessed,  309. 

when  allowed,  on  election  to  take  against  the  instrument,  545,  546. 
COMMITTEE, 

of  person  and  estate  of  lunatics,  &c.  684.    See  Lunatic,  Idiot  and  Confi- 
dential Relations. 

rule  as  to  his  purchase  of  the  trust  property,  186  et  seq. 
CONDITIONS, 

subsequent,  when  relieved  against,  56. 

in  restraint  of  marriage,  void,  215,  216. 

precedent,  must  be  strictly  performed,  294,  295. 

precedent  and  subsequent.  523. 

illegal  or  repugnant,  void,  523. 

where  condition  is  precedent,  its  performance  necessary  to  vest  an  estate,  528. 

by  what  words  created,  523,  524. 

on  marriage,  when  viewed  with  disfavor,  524. 

when  in  terrorem,  524. 

distinction  between  personal  legacies  and  legacies  charged  on  land,  525. 

if  condition  precedent  be  impossible  to  perform,  528. 

when  condition  subsequent  is  impossible,  528. 

if  condition  precedent  be  illegal,  528. 

if  it  require  the  performance  of  an  act  malum  in  se,  528. 

in  restraint  of  marriage,  530  to  532. 

difference  between,  when  imposed  by  husband  or  by  a  stranger,  534. 

repugnant  conditions,  void,  534. 

rule  as  to  performance,  534. 

principle  of  cypres,  534. 

subsequent,  construed  with  strictness,  534. 
CONDITIONAL, 

legacy,  522.    See  Legacy. 
Eq.  Jur.  0G 


762  Index. 

CONTINGENT 

legacy,  502  et  seq.    See  Legacy, 
CONFIDENTIAL 

relations,  transactions  between  parties  standing  to  each  other  ii    *63  ti  «+ 
CONFUSION  OF  BOUNDARIES, 

when  relieved  against,  56. 
CONSIDERATION, 

difference  between  a  good  and  a  valuable,  227,  413. 

actual  payment  of,  essential,  when,  &c.  256. 

rule  of,  as  to  commercial  paper,  256. 

of  prior  indebtedness,  good  between  the  parties,  but  not  enougl   tc  shut  out 
the  equities  of  prior  parties,  256. 

inadequacy  of,  when  a  defense  to  an  action  for  a  specific  performance,  263  to 
265. 

marriage  a  meritorious  consideration,  483. 
CONSENT, 

requisite  to  a  valid  agreement,  170,  194. 

of  court,  to  marriage  of  female  ward,  633. 

to  the  marriage  of  a  legatee,  when  improperly  withheld,  how  enforced,  52i- 

when  required  by  several  must  be  given  by  all,  526. 

of  acting  executor,  sufficient,  526. 

marriage  in  lifetime  of  testator  with  his  approbation,  equivalant  to  consent, 
526. 

consent  once  given  cannot  be  recalled,  527. 
CONDONATION, 

what  amounts  to  and  what  avoids  it,  657,  658.    See  Divorce. 
CONSTRUCTION 

of  wills,  rules  of,  490  to  494.     See  "Wills,  Legacies,  &c. 
CONSTRUCTIVE,  OR  IMPLIED  TRUSTS, 

defined  and  illustrated,  598.    See  Implied  Tbusts. 
CONSTRUCTIVE  FRAUD,  209  et  seq.     See  Fraud. 
CONTRACT, 

consent  requisite,  170,  194,    See  Agreement. 

when  obtained  by  persons  knowing  of  the  incapacity,  198. 

of  infants  and  feme  coterte,  when  relieved  against,  209. 

in  restraint  of  marriage,  void,  214. 

specific  performance  of,  when  decreed,  260,  &c.    See  Specific  Performance 

when  within  statute  of  frauds,  280,  281  et  seq. 

cannot  rest  partly  in  writing  and  partly  in  parol,  286. 
CONTRIBUTION, 

ground  of  the  jurisdiction  in,  106. 

equality  of  benefit  calls  for  equality  of  burden,  106. 

the  charge  must  not  arise  ex  delicto,  106,  107. 

it  arises  between  sureties,  107. 

also  between  joint  debtors,  107. 

when  there  are  more  than  two  sureties,  108. 

in  case  of  party  wall,  116. 


Index.  763 

CON  imVUTlOX— continued. 
division  fences,  116. 

between  owners  and  railroads,  117. 

rule  under  the  general  railroad  act,  118. 

rule  where  a  charge  in  several  lots,  118. 

rule  in  cases  of  several  insurances,  119,  120. 

rule  as  to  successive  purchasers  of  parts  of  lands  mortgaged,  119. 

distinction  between  mortgages  and  judgments,  119. 

rule  in  cases  of  average  and  jettison,  121,  122. 

rule  in  cases  of  lien  and  salvage,  123. 

rule  in  cases  of  factors  and  agents,  124. 
COPYRIGHTS, 

violation  of,  restrained  by  injunction,  383,  385. 
COUNTERCLAIM, 

nature  of,  and  how  made  available,  355. 
CORPORATIONS, 

restrained  by  injunction  like  natural  persons,  397. 

relief  granted  against  municipal,  397. 

protected  in  enjoyment  of  their  franchises,  401,  407. 

may  take  devises  and  bequests  to  charitable  uses,  when,  and  in  what  way 
576. 

right  to  acquire  and  convey  property  when  not  restricted  by  their  charter, 
610,  611. 

on  dissolution,  who  trustees  of  its  effects,  611,  743. 

proceedings  against,  in  equity  independently  of  statute,  729. 

how  defined  at  common  law,  729,  730. 

different  kinds  of,  730,  to  732. 

how  created,  733. 

their  capacity  to  hold  property  and  to  alienate  it,  734. 

capacity  of  religious  corporations,  734. 

may  hold  lands  in  trust,  &c.  735. 

what  conditions  may  be  imposed,  736. 

equity  will  compel  performance  of  trusts,  735.  736. 

municipal  corporations  relieved  against,  738,  739,  740. 

claims  of  creditors  how  enforced,  740. 

when  individual  stockholders  liable,  740,  741. 

when  corporation  authorized  to  execute  trusts,  742. 

consequences  of  a  dissolution  at  common  law,  on  the  effects  of  a  corporation, 
742. 

effect  under  the  statutes  of  N.  Y.  743. 

the  trustees  alone  incorporated  in  religious  corporations,  736  to  738,  note. 

may  mortgage  their  property  and  franchises,  744. 

effect  of  foreclosure,  and  title  of  purchaser,  744. 

equity  jurisdiction  over  by  statute,  745  to  754. 
over  directors,  746 

how  exercised,  717. 


764  Index. 

CORPORATIONS— continued. 

two  classes  of  cases  provided  for,  747,  748. 

refusal  to  pay  debts,  &c.  749. 

not  liable  to  creditor's  bill,  750. 

remedy  by  sequestration,  751. 

when  directors  of,  liable  for  breacb  of  trust,  751. 

■where  stockholders  personally  liable,  on  failure  of  the  corporation  to  pay 
752,  753. 

not  dissolved  by  neglect  to  pay  their  debts,  until  decree,  743.  750. 

before  dissolution,  the  title  of  their  property  in  the  corporation,  750. 

after  dissolution,  in  the  trustees,  750. 
CREDITOR, 

when  entitled  to  apply  indefinite  payments,  92.     See  Appropriation  oi 
Payments. 

when  he  is  to  make  the  appropriation,  100. 

frauds  against,  relievable,  225,  467,  &c.     See  Fratjd. 

can  reach  the  choses  of  his  debtor,  237. 

relief  in  favor  of,  against  judgment  debtor,  237,  to  239. 

what  choses  cannot  be  reached,  239,  240. 

when  buying  incumbrances  at  an  under  value,  allowed  the  whole  amouc* 
and  when  not,  339. 

trusts  in  favor  of,  allowed,  417. 

may  by  parol  show  a  deed  a  mortgage,  431. 

relief  in  favor  of,  against  fraudulent  assignments,  467,  &c.     See  Frattd 
Assignments,  &c. 
CREDITOR  BILL, 

what  interest  can  be  reached  by,  and  what  not,  237  to  240. 

when  injunction  to  restrain  transfer  of  property  by  debtor,  363. 

not  the  remedy  against  a  corporation,  750,  751. 
CUMULATIVE  LEGACIES, 

rules  with  respect  to,  530,  540,  541.     See  Legacies. 
CY  PRES, 

doctrine  in  existence  in  this  state,  594,  595. 

D 

DAMAGES, 

in  what  cases  granted  on  bills  for  specific  performance,  308,  309. 

how  ascertained,  309. 
DEAF  AND  DUMB, 

not  necessarily  an  idiot,  198. 
DEBTS, 

the  personal  estate  the  primary  fund  to  pay,  488,  564. 

when  and  how  charged  on  real  estate  of  testator,  487,  488,  564. 
DEBTOR, 

when  entitled  to  apply  payments,  92.     See  Appropriation  of  Payment* 


Index.  765 

DEED. 

what  capacity  necessary  to  make  a  valid  deed,  196. 

which  party  to  prepare  a  deed  in  case  of  an  executory  contract  to  sell  land, 
296,  297.  ■ 

when  ordered  to  be  delivered  up,  304,  305,  361. 

an  ancient  head  of  equity,  807. 

when  statute  and  rules  apply  to  deliver  up  deeds,  308. 

deed  intended  as  a  mortgage  should  be  so  recorded,  430. 

may  in  equity  be  shown  a  mortgage  by  parol,  429. 
DEFENSE, 

when  lost,  if  not  made  in  proper  time,  365. 

equitable,  when  allowed  to  a  legal  demand,  355,  356. 
DEMONSTRATIVE  LEGACY, 

what  it  is,  502.     See  Legacy. 

when  required  to  abate  and  when  not,  557,  553. 
DEVISE, 

to  a  charity,  when  limited  as  to  amount,  576. 
DISCRETION, 

exercised  by  courts  of  equity,  what,  263,  303. 
DISCOVERY, 

not  abolished  by  the  code  except  in  aid  of  another  action  or  defense,  42. 
88,  224. 

action  in  nature  of  bill  of,  sustainable  under  the  code,  224. 

every  action  is  a  bill  of,  at  the  election  of  the  plaintiff,  224. 
DIVISION  FENCES, 

relief  in  equity,  with  respect  to,  116,  117. 
DIVORCE, 

jurisdiction  of  equity  over,  by  statute,  654. 

no  jurisdiction  at  common  law,  655. 

nature  and  extent  of  the  jurisdiction,  655,  656 

when  the  contract  was  void,  655. 

when  for  adultery,  656. 

when  denied  and  for  what  cause,  657. 

doctrine  of  recrimination  and  condonation,  657,  658. 

when  separation  from  bed  and  board  granted,  659,  660. 

■when  for  cruelty,  660. 

what  deemed  cruelty,  660,  661. 

when  by  husband  for  separation  on  account  of  cruelty  by  wife,  662,  668. 

alimony,  ad  interim,  664,  665,  668. 

restoration  of  property,  when  decreed  to  wife,  669. 

custody  of  children,  how  disposed  of,  679. 

when  and  how  costs  are  allowed,  671. 
DONATIO  MORTIS  CAUSA, 

what  it  is,  553. 

what  essential  to  constitute,  553,  654. 

delivery  necessary,  054,  555. 

a  debt  may  be  discharged  by,  555. 


766  Index. 

DONATIO  MORTIS  CAUSA.— continued. 

wherein  it  resembles  a  legacy,  555. 

wherein  a  gift,  inter  vivos,  555,  556. 
DOWER, 

how  satisfied  on  a  partition  of  lands,  126. 

when  legacy  in  lieu  of,  a  bar,  546,  547  et  seq. 

remedy  for  in  equity,  693-698. 

husband's  conveyance  before  marriage  in  fraud  of  wife's  right  fcc  <lowef 
invalid,  696. 

dower  in  an  equity  of  redemption,  696. 

assets  marshaled  in  favor  of,  697. 

where  equity  affords  relief  not  available  at  law,  698. 

where  provision  in  lieu  of  dower  fails,  698,  699. 

when  compensation  for,  in  partition,  703. 
DRUNKARDS,  HABITUAL, 

proceedings  against,  683  et  seq.    See  Idiots,  Lunatics,  &c. 
DRUNKENNESS, 

effect  of,  on  contracts,  201. 
on  wills,  201. 

contracts  when  relieved  against,  200.    See  Habitual  Deunkabd* 
DURESS, 

different  kinds,  and  how  relieved  against,  208. 

E 

EJECTMENT, 

not  sustainable  by  mortgagee  in  N.  Y.,  449. 
ELECTION, 

doctrine  of,  with  respect  to  legacies,  544. 

ground  of  the  jurisdiction,  544,  545. 

when  party  put  to,  545,  546. 

if  legatee  elects  to  take  against  the  instrument,  545. 

when  widow  required  to  elect,  546  et  seq. 

when  legatee  or  devisee  put  to,  54&  to  552. 
EQUITABLE 

conversion,  588,  600,  601. 
EQUITABLE  ASSINGMENTb, 

what  constitutes,  463. 
EQUITABLE  DEFENSES, 

when  allowed  to  a  legal  demand,  355,  356. 
EQITABLE  LIEN, 

how  and  when  enforced,  439,  440. 
EQUITY, 

a  distinct  branch  of  jurisprudence,  33,  87. 

pleadings  in,  36. 

general  nature  of,  37. 


Index.  767 

EQUIT  Y — continued. 

does  not  relieve  against  a  general  rule  of  law,  41. 

mode  of  trial  in,  42. 

maxims  of,  44  to  49. 

follows  the  law,  44  to  49. 

if  equities  equal,  the  law  prevails,  45,  253,  255. 

he  who  seeks  equity  must  do  equity,  46. 

equality  is  equity,  47. 

treats  things  as  done,  which  ought  to  he  done,  47,  298,  299,  567. 

for  relief  in,  in  cases  of  accident,  mistake,  fraud,  &c.    (See  those  titles.) 

equality  of  benefit  calls  for  equality  of  burden,  115. 

the  .egal  title  and  equal  equity  prevail  over  the  equity,  255. 

when  it  grants  relief,  where  no  action  at  law  will  lie,  279. 

of  redemption,  what,  427.     See  Mortgage. 
ESTATES, 

how  limited,  466. 

rules  it  common  law,  476. 

modification  of  law,  476. 
EVICTION", 

when  a  discharge  of  rent,  128. 
EXECUTION, 

against  one  partner,  what  interest  of  the  partnership  may  be  taken,  720  et 
seq.    See  Partner  and  Partnership. 
EXECUTORS, 

treated  as  trustees,  and  liable  as  such,  490. 

legacies  to,  how  treated,  535. 

presumption  with  respect  to,  535. 

not  regarded  as  a  debt,  536. 

when  delay  in  accepting  the  office  wiI2  require  an  abatement  of  the  legacy, 
537,  538. 

obtaining  probate,when  an  acceptance  and  when  not,  538,  539.    See  Legacy. 

no  right  to  retain  for  his  own  debt  until  proved  and  allowed  by  the  surro- 
gate, 559,  560. 

when  required  to  relieve  the  heir  of  a  burden,  567. 

his  title  to  the  residue  at  common  law,  602. 

present  law  otherwise,  602. 

disabled  to  purchase  for  their  own  benefit,  604  to  606. 

ground  of  the  disability,  604,  606. 
EXECUTORS  AND  ADMINISTRATORS, 

transactions  of,  with  the  estate,  189. 

may,  for  benefit  of  creditors,  avoid  a  fraudulent  sale,  &c.  of  th*»  testator,  240. 

they  represent  the  rights  of  creditors,  240,  337. 
EXONERATION, 

ground  of  the  jurisdiction  in,  106,  109. 

exoneration,  relief  granted  before  payment,  110. 


768  Index. 

EXPECTANT  HEIRS, 

transactions  with,  178,  179. 
ground  of  the  jurisdiction,  179. 

F 

FACTORS, 

lien  of,  for  accounts,  124. 
FATHER, 

liability  to  support  his  children,  626. 

in  what  place  to  support  them,  626. 

in  what  cases  equity  interferes  to  compel  him.  626.  627. 

not  bound  to  support  his  wife's  children  by  a  former  marriage,  629. 
FIXTURES, 

what  constitutes,  375. 

the  rule  with  respect  to,  376,  377. 
between  heir  and  executor,  376. 

between  executor  of  tenant  for  life  and  remainderman,  376. 
between  landlord  and  tenant,  376,  377. 
FORECLOSURE, 

of  mortgages,  two  kinds,  450. 

effect  of,  451,  452. 

mode  of,  and  order  of  payment,  453. 

paying  off  liens,  454. 

strict,  effect  of,  452. 

when  it  extinguishes  the  debt,  and  when  not,  452. 

of  right  to  redeem  a  pledge,  452. 
FORFEITURES, 

when  relieved  against,  55,  56. 
FRANCHISE, 

enjoyment  of,  protected  by  injunction,  407. 

of  a  corporation,  what  it  is,  729,  730,  744. 

a  subject  of  sale  or  mortgage,  744. 
FRAUD, 

cognizable  formerly  in  star  chamber,  145. 

remediable  at  law  as  well  as  in  equity,  145. 

when  fraud  is  not  penal,  equity  has  concurrent  jurisdiction  in,  144 

in  obtaining  a  will,  145,  146. 

equity  will  declare  a  trust  upon  a  will,  when,  146. 

definition  of  fraud,  147. 

when  not  to  be  presumed,  148. 

different  kinds  of  fraud,  148. 

suggestio  falsi,  148  to  150. 

difference  between  fraud  and  warranty,  149. 

suppressio  veri,  150. 

in  insurance  cases,  and  cases  of  suretiship,  150,  151 

concealment  predicable  only  of  material  facts,  151. 

disclosure  required  by  conscience,  151. 


Index.  769 

FRAUD — continued. 

caveat  emptor,  151  et  seq.    See  Caveat  Emptob. 

in  sale  of  land  as  to  title,  quality,  &c,  152. 

demise  of  house  tor  occupation,  153,  154. 

in  sale  of  goods,  156  to  158. 

in  deeds,  relievable  in  equity,  160. 

in  judgments  and  decrees  also,  160. 

in  what  cases,  160,  162. 

but  not  when  defense  at  law  has  failed  for  want  of  proof,  or  by  his  owe 

neglect,  161,  163. 
not  for  irregularity,  163. 
in  case  of  awards,  164. 
when  obtained  by  fraud,  &c.  164. 
in  case  of  letters  patent,  165,  167. 
in  case  of  policies  of  insurance,  166  to  168. 
what  disclosures  must  be  made,  167,  168. 
effect  of  fraudulent  concealment.  167. 
against  releases  obtained  by  fraud,  168. 
against  deeds,  169,  304,  305. 
if  injured  party  with  full  knowledge  settles  the  matter,  no  relief  is  granted, 

169. 
between  parties  standing  in  cofidential  relations,  169. 
oetween  attorney  and  client.  171. 

patient  and  physician,  175. 
parent  and  child,  176. 
in  case  of  expectant  heirs,  179. 

post  obit  bonds,  180. 
between  guardian  and  ward,  182. 

trustee  and  cestui  que  trust,  186,  187,  190. 
executors  and  administrators,  189. 
principal  and  surety,  190. 
partners,  190,  192. 
principal  and  agent,  190. 
joint  debtors,  190. 

rule  in  this  state  with  respect  to  charging  the  representatives  of  the  de- 
ceased, 193. 
when  surprise  a  fraud,  205,  206. 
pirating  trade-marks,  206. 
illusory  appointments,  207,  208. 
in  cases  of  duress,  208. 
.n  case  of  a  fine,  how  relieved,  197. 
implied  frauds,  209. 

underhand  agreements,  relieved  against,  200 
marriage  brocage  bonds,  210,  213. 
contracts  in  restraint  of  marriage,  213,  214. 
in  fraud  of  the  marriage,  211. 
usurious,  216,  224. 
Eq.  Jch.  97 


770  Index. 

FRAUD  —continued. 

statute  of  frauds,  226. 

contracts  in  fraud  of  creditors,  purchasers,  &c.  225  to  2S2. 

in  marriage  settlements,  228,  &c.  480,  481. 

indebtedness  alone  not  enough  to  avoid,  &c.  233. 

assignments,  &c.  241,  466,  &c. 

what  evidence  of  fraud  in,  241,  242. 

in  subscriptions,  &c.  257,  258. 

when  prevented  by  injunction,  341  et  seq.    See  Injunctions. 
FRAUDS,  STATUTE  OF, 

agreements  within,  when  enforced,  280,  281. 
FRAUDULENT 

conveyances,  226  et  seq.    See  Fbattd. 

settlements,  229  et  seq.    See  Feattd,  Markiage  Settlement. 

assignments,  241,  242  et  seq.,  465  to  469. 

G 

GUARDIAN, 

transactions  of,  with  ward,  182,  185. 
gifts  to,  by  ward  during  guardianship,  183. 

afterwards,  183. 
allowances  to,  at  common  law,  183,  184. 

the  like  by  statute  of  N.  T.  185,  186. 
gratuities  to  guardian  by  ward,  186. 
when  guardianship  of  infant  female  terminates,  369. 

when  N.  Y.  Life  Ins.  and  Trust  Co.  may  be,  without  giving  security,  558,  569. 
Aree  kinds  of  guardianship  at  common  law,  621. 
guardianship  by  nature,  by  nurture  and  in  socage,  621. 
the  nature  of  them  explained,  621. 
but  two  kinds  in  this  state,  622,  623. 
jurisdiction  of  surrogate,  how  exercised,  622. 
grounds  for  removal,  624. 
power  of  guardian  over  personal  estate,  624. 

over  real  estate,  624,  625. 

to  change  domicil  of  ward,  625. 

of  court  to  change  the  investment,  625. 

H 

HABITUAL  DRUNKARDS, 

proceedings  against,  683. 

what  evidence  sufficient,  684. 

persons  furnishing  drunkard  with  liquor,  how  punished,  684- 

when  commission  will  be  superseded,  689. 

commission  usually  suspended  first,  690. 

contracts  made  by  drunkard  while  commission  is  in  full  force,  invalid^  691 
HEIR, 

when  compelled  to  perform  agreement  of  his  ancestor.  269  270,  271. 


Index.  771 

HEIR — continued, 

when  chargeable  with  the  payment  of  a  legacy,  489. 

when  he  can  compel  the  executors  to  remove  a  charge  from  lands  descended, 
667  to  509. 

and  when  not,  567  to  569. 
HEIRS  EXPECTANT, 

transactions  with,  watched  with  jealousy,  178,  179. 
HYPOTHECATION", 

meaning  of,  459. 

wherein  it  differs  from  a  pledge,  459. 


IDIOTS, 

meaning  of  term,  196,  673,  674. 

contracts  of,  how  and  in  whose  favor  relieved  against,  195,  196,  200. 

how  protected  and  by  what  court,  674  et  seq.    See  Lunatics. 

doctrine  with  respect  to,  treated,  671  et  teq. 

origin  of  the  jurisdiction,  672. 

meaning  of  the  term,  673. 

of  persons  of  unsound  mind,  675,  to  679. 

mode  of  taking  inquisition,  681,  682. 

habitual  drunkards,  683. 

traverse  of  inquisition,  not  of  course,  676,  682,  683. 

jurisdiction  of  committee,  684. 

who  should  be  appointed.  684,  685. 

interest  of  idiot  to  be  consulted  in  the  management  of  his  estate,  685. 

allowance  to  kindred,  when  made,  685,  to  687. 

when  inquisition  will  be  set  aside,  688. 

when  quashed,  688. 

when  a  new  commission  will  go,  688. 

of  discharging  commission,  689. 

idiots  liable  for  personal  torts,  692. 
/GNORANCE  OF  LAW, 

effect  of,  in  contracts,  62,  &c.     See  Mistake. 
ILLUSORY  APPOINTMENTS, 

former  doctrine  changed  by  law,  207,  208. 
IMBECILITY  OF  MIND, 

effect  on  contracts,  203.    See  "Weakness  of  Mind,  Idioot,  Lunaot,  Non-oom« 
pos  Mentis. 
connected  with  other  things,  a  ground  of  relief,  203,  204. 
IMPLIED  TRUSTS, 

defined  and  illustrated,  598. 

resulting  trusts,  417,  599,  601,  603. 

where  the  acquisition  of  the  estate  is  affected  with  fraud,  599. 

by  equitable  construction  in  the  absence  of  fraud,  C99, 


772  Index. 

IMPLIED  TRUSTS— continued. 

resulting  trust  the  creature  of  equity,  600. 

never  raised  in  fraud  of  the  law,  600. 

■when  agent  to  sell  becomes  purchaser,  converted  into  a  trustee,  608. 

trustee  disabled  to  purchase  for  himself,  604. 

reasons  of  the  disability,  604,  605. 

not  necessary  to  show  fraud,  605, 

object  is  to  prevent  fraud,  605. 

may  purchase  with  consent  of  a  court  of  equity,  606. 

remedy  is  only  in  equity,  607. 

equity  of  the  cestui  que  trust  with  respect  to  such  sales,  607. 

rule  with  respect  to  executory  contracts,  607. 

purchase  with  notice  of  trusts,  608. 

relation  of  vendor  and  vendee,  610. 
INADEQUACY, 

of  consideration,  its  effect  on  contract,  202. 

■what  is  meant  by  gross  inadequacy,  203. 

its  effect  on  bills  for  specific  performance,  204.    See  Specific  Performance. 
INCUMBRANCES, 

order  of  paying  same,  125,  448  et  seq. 
INDUSTRIAL 

accessions,  under  what  circumstances  recoverable,  311. 

and  when  not,  312. 
INFANTS, 

when  decreed  to  perform  agreements  of  their  ancestor,  269. 

when  parent  restrained,  from  moving  out  of  state,  369. 
allowed  to  receive  legacy  to,  558. 

protected  by  courts  of  equity,  617. 

father  entitled  to  the  custody  of,  617. 

when  his  right  forfeited  and  by  what  acts,  617. 

right  of  the  mother,  when,  617. 

in  what  manner  the  right  of  custody  is  examined,  618. 

habeas  corpus,  when  proper,  618. 

testamentary  guardian,  by  whom  made,  620. 

right  does  not  extend  to  natural  children,  621. 

three  kinds  of  guardians  at  common  law,  621. 

two  kinds  in  this  state,  622.     See  Gttaedian. 

right  to  maintenance,  when,  &c.  626.    See  Maintenance. 

when  real  estate  to  be  sold  for,  629. 
INJUNCTION, 

meaning  of  the  term,  341. 

different  kinds,  341. 

when  the  granting  of,  rests  in  discretion  and  when  not,  341,  342. 

never  granted  against  persons  not  parties,  342. 

nor  unless  prayed  for  in  complaint,  342. 

nor  till  the  complaint  is  filed,  342. 


Index.  773 

fyjTCKCTION— con  Untied. 

difference  in  the  English  practice  between  common  and  special  injunction,  342. 

In  this  state  all  are  special,  342. 

writ  of  injunction  abolished,  and  injunction  by  order  substituted,  342. 

preliminary,  what  and  when  granted,  343. 

when  should  be  prayed  for  in  the  complaint,  343. 

to  stay  proceedings  in  other  courts,  345. 

opposition  thereto  by  Lord  Coke,  345. 

in  what  stage  of  a  cause  granted,  346. 

when  granted  in  favor  of  a  surety,  346. 

grounds  of  the  jurisdiction  over  suits  at  law,  247. 

not  granted  when  remedy  at  law  perfect,  347. 

nor  when  plaintiff  lost  his  defense  by  his  own  negligence,  348,  352. 

not  granted  against  the  proceedings  in  the  courts  of  another  state,  348. 

nor  against  proceedings  in  U.  S.  courts,  348. 

statutory  restrictions  in  N.  Y.,  348,  349. 

when  bail  is  required  and  when  not,  340,  350. 

when  deposit  of  money  required  and  when  not,  349,  350. 

provisions  of  the  code  with  respect  to,  351. 

when  defense  at  law  lost  by  accident,  353. 

lost  by  fraud  of  the  other  party,  353. 

for  newly  discovered  evidence,  357. 
but  not,  if  remedy  at  law  be  adequate,  357,  358. 
to  restrain  the  transfer  of  bills  or  notes,  358,  359. 
ground  of  the  jurisdiction,  359. 
when  note  void  on  its  face,  or  only  by  matter  dehors,  rule  with  respect  to, 

360. 
to  deliver  up  deeds,  &c.  361. 

not  granted  to  restrain  the  publication  of  a  libel,  361. 
nor  to  restrain  collection  of  a  tax,  unless  the  assessment  be  void,  362. 
to  restrain  sale  of  real  estate,  362. 
the  sailing  of  a  ship,  362 
the  transfer  of  stock,  362,  363. 
the  sale  of  personal  property,  362,  363. 
to  compel  the  delivering  up  of  chattels,  365  to  366. 
to  restrain  the  wasting  of  assets,  367. 
ground  of  the  jurisdiction,  368. 
enjoyment  of  property  protected  by,  364. 
parent  restrained  from  moving  his  child,  369. 
infant  ward  from  marrying,  369. 
to  prevent  waste  and  trespass,  369  et  seq. 
by  and  against  what  parties  granted,  379,  380. 
to  restrain  trespasses,  381. 

infringement  of  patents,  383. 

violation  of  copyrights,  383. 

the  unauthorized  publication  of  letters,  383. 

nuisancer,  public  or  private,  388. 


774  Index. 

INJUNCTION— continued. 

purprestures,  388,  398. 

protect  ancient  lights,  394  to  397. 

restrain  corporations,  397. 

to  prevent  erection  of  wharves  and  bridges,  399,  400. 

to  restrain  multiplicity  of  suits,  401. 

to  qniet  possession,  401. 

to  repress  vexatious  litigation,  401. 

to  prevent  pirating  trade-marks,  408,  404. 

to  prevent  disclosing  secrets,  &c.  407. 
not  granted  to  restrain  building  a  railroad  in  a  street,  40$. 
not  to  prevent  the  reasonable  use  of  one's  property,  402. 
right  to  injunction  lost  by  delay,  404. 
■when  it  must  be  applied  for  by  the  attorney  general,  406. 
to  prevent  trustee  from  violating  his  duty,  472. 
INQUISITION, 

of  lunacy,  presumptive  evidence  of  insanity,  199. 
when  suspended,  lunatic  may  make  will,  199,  690. 
INTENTION, 

how  sought,  490,  497. 

carried  out,  if  consistent  with  rules  of  law,  568. 
of  donor  of  a  charity,  how  ascertained,  590. 
INTERPLEADER, 

nature  of  the  remedy,  313. 
summary  remedy  by  code,  315. 
no  objection  that  one  claim  is  equitable,  316. 
when  will  not  lie  between  landlord  and  tenant,  316. 
or  principal  and  agent,  316. 
or  attorney  and  client,  316. 
reasons  of  the  rule,  317. 

in  what  cases  attorney  may  interplead  his  client,  318. 
in  strict  bill  of  interpleader,  nature  of  the  claim,  318. 
a  party  claiming  a  beneficial  iuterest  in  the  subject  cannot  interplead,  319 
by  filing  the  bill  plaintiff  admits  title  as  against  himself,  320. 
what  bill  must  show,  320. 

when  bill  in  nature  of  a  bill  of  interpleader  lies,  321. 
to  what  decree  plaintiff  entitled,  321. 
when  cause  will  be  decided  without  a  reference,  322. 
costs  usually  chargeable  to  the  fund,  321. 
bill  of  interpleader  not  much  favored,  223. 
INSURANCE, 

policies  of,  when  relieved  against,  167 


Index.  775 


JETTISON, 

meaning  of  the  term,  121. 

in  what  cases  contribution  takes  place  in,  122. 

principle  of  the  rule,  122. 
JOINT  DEBTORS, 

transactions  between,  191,  192. 

when  agent  for  each  other,  192. 

notice  to  one  notice  to  all,  191. 

estate  of  deceased  joint  debtor  cannot  be  reached,  without  showing  the  in- 
solvency of  the  survivor,  193. 

the  rule  otherwise  in  England,  192,  193. 
JUDGMENTS, 

relieved  against  for  fraud,  161  to  164,  353. 

but  not  for  irregularity,  163. 

nor  when  suffered  to  be  taken  by  neglect,  161. 

postponed  to  a  prior  unrecorded  mortgage,  255,  438 

rule  under  the  revised  statutes,  439. 

when  relieved  against  as  contrary  to  equity,  353. 

when  relieved  by  motion  in  same  court,  356. 

when  by  action,  356,  357. 

L 
LAND, 

when  sale  of,  restrained  by  injunction,  362. 

contracted  for,  descends  to  the  heir,  567. 

when  treated  as  money,  298,  299. 
LANDLORD  AND  TENANT, 

transactions  between,  189. 

when  covenants  between,  will  be  specifically  enforced,  278. 

when  restrained  from  violating,  278.     See  Injunction. 

when  allowed  to  interplead,  and  when  not,  318,  319. 

doctrine  of  waste  with  respect  to,  373,  374. 
LAPSE, 

in  what  cases  legacies  lapse  by  the  death  of  legatee  "before  the  testator,  and 
when  not,  508 

not  affected  by  words  of  limitation,  510. 

may  be  prevented  by  express  words,  510,  511. 

a  legacy  to  a  child  or  other  descendant  does  not  lapse  on  death  of  legatee, 
by  statute,  511,  512. 

legacy  to  two  or  more  jointly,  does  not  lapse  on  death  of  one,  but  the  sur- 
vivor takes,  512. 

otherwise,  when  given  to  tenants  in  common,  512. 

when  it  happens  by  deatli  of  legatee  after  the  death  of  testator,  513,  514. 

vesting  of  interests  favored,  513. 


776  Index. 

LAPSE — continued. 

when  time  of  payment  annexed  to  the  gift,  death  of  legatee  hefore,  occa 

sions  a  lapse,  515,  516. 
what  circumstances  vary  the  rule,  517. 

when  legacy  payable  out  of  real  estate  only,  how  the  rule  is  varied,  517,  518. 
the  reason  of  the  rule,  518. 
now  varied  by  express  intention,  520. 

when  legacy  payable  out  of  a  mixed  fund  of  real  and  personal,  520,  521- 
LEGACY, 

payable  at  a  future  day,  how  secured,  SSI. 

of  personal  chattels  for  life,  330. 

when  and  how  charged  on  real  estate,  487,  488. 

when  charged  by  implication,  489. 

how  enforced,  489. 

purchaser  of  land,  charged  with  notice,  489. 

liable  to  pay  the  legacy,  489. 

when  purchaser  chargable  with  notice,  489. 

when  estate  devised  on  condition  to  pay  legacy  and  the  devisee  declines  ac 

cepting  the  estate,  the  legatee's  remedy  is  in  equity  alone,  489. 
construction  of,  rules,  490. 
intention,  how  sought,  490. 
grounds  of  equity  jurisdiction  over,  498. 
how  defined,  and  wherein  it  differs  from  devise,  498. 
by  what  courts  payment  enforced,  499. 
when  an  action  at  law  lies  for  same,  500. 

to  a  married  woman,  on  what  terms  husband  allowed  to  recover  it,  501. 
different  kinds  of  legacies,  502. 
general,  specific,  502  to  505. 
absolute  and  conditional,  502  to  504. 
demonstrative,  502  to  504. 
vested  and  contingent,  502,  507,  508. 
when  it  lapses  on  death  of  legatee  hefore  the  testator,  508. 
and  when  not,  508. 

when  by  creditor  to  his  debtor,  a  release,  509. 
how  lapse  affected  by  words  of  limitation,  510. 

by  direct  words  that  it  shall  not  lapse,  510. 
how  far  controlled  by  the  expressed  intention,  511. 
to  a  child  or  descendant,  no  lapse,  511,  512. 
to  two  or  more  jointly,  does  not  lapse  on  death  of  one,  but  tne  survivor 

takes  the  whole,  512. 
otherwise,  when  given  to  several  in  common,  512. 
when  legacy  due,  when  no  period  fixed,  512. 
when  to  one  for  life,  remainder  over,  on  death  of  tenant  for  life  before  the 

testator,  remainder  takes  effect,  513. 
when  it  lapses  by  death  of  legatee  after  the  death  of  the  testator,  513,  514. 
rules  of  the  civil  law  in  this  respect,  513. 
court  favors  a  vesting  of  interests,  513. 


Index.  Tl\ 

LEGACY — continued. 

when  time  of  payment  is  annexed  to  the  gift,  death  of  legatee  before  it  ar- 
rives occasions  a  lapse,  515,  516. 

•what  circumstances  va>  /  the  rule,  517. 

when  payable  out  of  real  estate  only,  how  varied,  517,  518. 

the  reason  of  the  n>*e,  518. 

how  varied  by  express  intention,  520. 

payable  out  of  a  mixed  fund  of  real  and  personal,  rule,  520,  521. 

absolute  and  conditional,  522. 

no  precise  wonls  necessary  to  make  a  condition,  523,  527. 

imposing  restrictions  on  marriage,  525. 

if  condition  precedent  be  impossible  to  perform,  528. 

if  condition  subsequent  be  impossible,  528. 

if  condition  precedent    be  illegal,  528. 

if  it  requires  to  do  an  act  malum  in  se,  528. 

in  i^straint  of  marriage,  when  good  and  when  not,  529  to  531. 

conditions  repugnant,  void,  533. 

rule  as  to  performance  of  condition,  534. 

to  executor  for  care  and  pains,  535. 

presumption  with  respect  to,  535. 

failing  to  comply  with  the  condition,  536. 

not  regarded  as  a  debt,  536. 

when  apportioned,  537,  538. 

when  obtaining  probate  not  sufficient  acceptance  of  the  trust,  538,  539 

when  cumulative  and  when  not,  539,  540. 

when  legacy  a  satisfaction  of  a  debt,  542,  543. 

when  satisfied  by  testator  in  his  lifetime,  543. 

doctrine  of  election  with  respect  to,  544.    gee  Election. 

abatement  of,  and  to  whom  payable,  556  et  seq.    See  Abatement. 

general,  when  it  abates,  556. 

to  whom  payable,  558. 

when  to  parent  for  infant,  558. 

when  to  husband,  559. 

when  to  married  woman,  559. 

in  what  courts  enforced,  560. 

when  given  to  a  charity,  limitation  as  to  amount,  570. 
LETTERS, 

publication  of,  restrained  by  injunction,  385,  386. 

ground  of  the  jurisdiction,  385. 
LETTERS  PATENT, 

when  relieved  against  in  equity,  165. 
LEX  LOCI 

governs  in  marriage  contracts,  482. 
LIEN", 

meaning  of  the  term,  123. 

possession  necessary  to  a  lien  on  goods,  128. 

not  so  in  marntime  affairs,  123. 
£q  Jup  98 


778  Index. 

LIEN — continued. 

rule  as  to,  in  equity,  123. 

sustained  in  equity  when  not  at  law,  124. 

in  favor  of  purchaser  of  land,  for  purchase  money,  124. 

when  factors  and  agents  have,  124.    See  Factor  and  Agent. 

of  vendor,  for  purchase  money,  301,  443. 
how  taken  away,  443. 
judgments,  from  what  time,  438. 

equitable,  how  enforced,  439,  440. 
by  deposit  of  title  deeds,  440. 

equitable  mortgage,  441,  462. 

how  lien  for  purchase  money  enforced,  443. 
LIMITATION 

of  actions,  part  payment  by  one  of  several  joint  debtors  does  not  revive  tba 
debt,  except  as  against  party  paying,  728. 
LIS  PENDENS, 

what  it  is,  and  when  it  operates  as  notice,  251. 

reasons  of  the  rule,  252. 

New-York  statute  on  the  subject,  252. 
LITERARY  PROPERTY, 

in  what  court  protected,  and  how,  384  to  388. 
LUNACY, 

what  constitutes,  194  to  196. 

what  capacity  essential  to  a  contract,  201. 

effect  on  capacity  to  make  a  will,  199,  200. 

commission  of,  its  effect  on  same,  200. 

effect  of  suspending  same,  200. 

what  acts  relieved  against,  200. 

who  appointed  committee,  684,  690.. 

remedy  of  creditors  against  lunatic,  691. 

lunatic  liable  for  personal  costs,  692. 

contracts  made  by  party  under  a  commission,  invalid,  691. 
LUNATICS, 

when  decreed  to  perform  agreements  of  their  ancestor,  270,  271. 

meaning  of  the  term,  673. 

persons  of  unsound  mind,  675  to  679. 

mode  of  taking  inquisition,  681,  682. 

habitual  drunkards,  683. 

traverse  of  inqaisiton,  not  of  course,  676,  682,  683. 

jurisdiction  of  committee,  684. 

who  should  be  appointed,  684,  685. 

whose  interest  to  be  consulted  in  managing  estate,  685. 

allowance  to  kindred,  when  proper,  686,  687. 

inquisition,  when  quashed  or  set  aside,  688. 

when  suspended  in  whole  or  in  part,  690. 


Index.  779 

M 

MAINTENANCE, 

obligation  of  parents  with  respect  to,  626. 

power  of  court  over,  626. 

from  what  fund  to  be  granted,  627,  628. 

when  principal  of  infant's  estate  may  be  taken,  627. 

when  for  past  maintenance,  627. 

liability  of  husband  as  to  wife's  children,  629. 

of  wife  ta  support  children  of  a  former  marriage,  629, 

sale  of  infants'  estates  by  statute,  629. 
MANUSCRIPTS, 

unauthorized  publication  restrained  by  injunction,  385. 
MARRIAGE, 

brocage  bonds,  210. 

frauds  on,  210  to  213. 

conditions  in  restraint  of,  void,  215. 

legacy  on  condition  of  consent  to,  215,  216. 

of  ward,  without  consent,  how  punished,  369. 

consent  of  court,  when  necessary,  &c.  633. 

effect  of,  on  capacity  of  wife  to  contract,  473. 
on  her  property,  real  and  personal,  47,  473. 

a  meritorious  consideration,  483. 

of  infants,  doctrine  with  respect  to,  630  to  632. 

usual  settlement  ordered  on,  633. 
MARRIAGE  SETTLEMENTS, 

when  presumed  to  be  fraudulent,  228,  &c 

cases  of,  considered,  228  to  230. 

effect  of  indebtedness  of  settlor  on,  233,  234. 

rule  in  N.  Y.  233. 

of  trusts  in,  472  et  seq. 

object  of,  473. 

strict  settlement,  what,  473,  475 

by  whom  made,  474. 

before  marriage,  478. 

words  necessary  to  create  a  trust,  477. 

intervention  of  trustees  not  necessary  in,  179. 

frauds  in,  effect  of,  480. 

rights  in,  governed  by  lex  loci,  482. 

voluntary,  by  a  person  indebted,  when  void  as  against  creditors,  483. 
MARRIED  WOMEN, 

legacy  to,  to  whom  payable,  559. 

of  protection  of  the  court  to,  634. 

treated  as  femes  sole  by  courts  of  equity,  634. 

control  over  her  property,  634. 

equity  of  wife  to  a  provision  out  of  her  own  property,  635  to  640. 

not  confined  to  cases  where  husband  is  plaintiff,  636. 


780  Index. 

MARRIED  WOMEN— continued. 

right  may  be  actively  enforced  by  her,  636. 

her  equity  binding  on  the  husband  and  those  succeeding  to  him,  637. 

her  children  no  equity  but  through  her,  637. 

it  is  personal  to  her,  638. 

the  amount  of  her  property  to  be  settled,  638,  639. 

her  equity  may  be  waived,  639. 

how  barred  by  a  settlement,  639. 

in  case  wife  a  ward  of  court,  64,  639. 

effect  of  acts  of  1848  and  1849,  considered,  640  et  seq. 

may  convey  her  real  property  without  uniting  in  a  deed  with  her  husband 
644. 

how  treated  as  a  feme  sole  as  to  contracts,  645,  646. 

separate  property  of,  647,  648. 

may  mortgage  separate  property  for  husband,  648. 

may  become  surety,  when,  649. 

in  what  way  charge  her  separate  estate,  651. 

what  meant  by  separate  estate,  652,  653. 

maintenance  of  wife,  when  decreed,  653. 

divorces,  654.    See  Divokoe. 

alimony,  664  to  668. 

when  her  property  restored  to  her  on  divorce,  669. 

custody  of  children  on  divorce,  670. 
MARSHALING 

of  assets,  561  et  seq.     See  Administrator,  Assets. 

securities,  doctrine  of,  337. 

applies  only  when  plaintiff  and  defendant  are  creditors  of  a  common  debtor, 
338. 

never  enforced  to  the  prejudice  of  third  persons,  339. 
MAXIMS 

of  equity,  44  to  49.     See  Equity. 

things  agreed  to  be  done,  treated  as  if  done,  298,  299,  567. 

when  and  between  what  parties,  298,  299,  567. 
MENTAL  WEAKNESS, 

when  ground  of  relief,  194,  195  et  seq. 

rule  at  law  and  in  equity  as  to,  195. 

with  respect  to  deeds,  196. 
MERGER, 

when  equitable  estate  merged  in  legal,  425. 

in  what  cases  kept  distinct,  though  in  the  same  person,  42b. 
MISDESCRIPTION, 

when  a  bar  to  an  action  for  specific  performance,  295,  296. 
MISTAKE, 

definition  of,  59. 

mistake  or  ignorance  of  law  not  relievable,  59,  60. 

no  distinction  between  ignorance,  of  the  law,  and  mistake  of  the  law,  as  t» 
remedy,  62 


Index.  781 

MISTAKE — continued. 

money  paid,  with  full  knowledge  of  the  facts,  cannot  be  recovered  back,  on 

the  ground  of  mistake,  62. 
Chancellor  Kent's  opinion,  63. 
Judge  Bronson's  opinion,  63. 
Chancellor  Walworth's  opinion,  64. 

ignorance  of  the  law,  has  reference  to  the  law  of  one's  own  country,  64. 
a  man  is  not  presumed  to  know  the  law  of  another  state,  64. 
as  to  wrong  advice  as  to  the  law,  65,  66. 

as  to  mistake  or  ignorance  of  law,  mixed  with  surprise,  misplaced  confi- 
dence, &c.  66,  67. 
a  compromise  of  a  doubtful  right,  not  relieved  against,  68. 
every  man  is  presumed  to  know  the  law,  68. 
mistake  or  ignorance  of  fact  relievable,  69. 

fact  must  be  material,  and  party  asking  relief  must  apply  without  delay.  69. 
case  of  mutual  mistakes,  69. 
mistake  as  to  the  existence  of  a  mine,  69. 
a  receipt  given  by  mistake,  relievable,  70. 

a  payment  by  misttake  of  a  satisfied  mortgage,  may  be  relieved  against,  70 
to  entitle  the  party  to  relief,  the  fact  must  be  material,  and  the  ignorance  ot 

it  not  the  result  of  negligence,  70. 
the  fact,  if  known  to   the  other  p:irty,  is  not  a  ground  of  relief,  unless  he 

was  bound  to  communicate  it,  71. 
if  both  parties  are  equally  innocent,  no  relief,  71. 
no  relief  for  mistake  of  judgment  as  to  value,  72. 
but  granted  as  to  mistake  of  quantity,  73. 
and  mistake  as  to  subject  matter,  73. 
parol  evidence  competent  to  show  mistake  in  written  contract  in  an  action 

to  reform  it,  73,  300. 
deed  absolute  may  be  shown  to  have  been  intended  for  a  mortgage,  74,  77 
mistakes  by  arbitrators,  77. 
when  legal  rights  of  parties  have  been  changed  by  mistake,  equity  restores 

them,  78. 
decrees  and  judgments  when  mistakes  in,  corrected,  77,  78. 
no  difference,  if  mistake  occasioned  by  the  party  himself,  79. 
specific  performance  not  decreed  against  purchaser  at  auction,  who  bids  under 

mistake  as  to  lot  put  up,  79. 
less  danger  in  correcting  mistakes  in  written  than  oral  contracts,  79. 
mistake  in  wills,  when  corrected,  80,  82. 
as  to  person  of  legatee,  80.  81. 
as  to  subject  of  bequest,  82. 
relief  in  case  of  defective  execution  of  powers,  83. 
not  as  to  non-execution  of  powers,  83. 
ignorance  in  matters  of  law,  not  relieved,  83. 
rule  in  New- York  as  to  mistake  in  powers,  84. 
when  an  excuse  for  performing  an  agreement,  288. 


782  Index. 

MONEY, 

agreed  to  be  laid  out  in  land  when  treated  as  land.  298,  299. 
bequeathed  to  be  so  laid  out,  bow  treated,  299. 
MOETGAGE, 

of  chattels,  relieved  against  'when  fraudulent,  241. 

non-delivery  of  possession,  badge  of  fraud,  241. 

New-York  cases  on,  reviewed,  241,  242  et  seq. 

ditinction  between  sales  and  mortgages,  244. 

when  and  where  to  be  recorded,  245. 

object  of  the  record,  245. 

foreclosure  of,  455  to  457. 

when  good  without  delivery,  456,  457. 

of  real  estate,  to  be  recorded  in  separate  books  from  deeds,  254. 

if  improperly  recorded,  not  notice,  254. 

if  not  recorded,  it  is  preferred  to  a  subsequent  docketed  judgment,  and  why, 

255,  435. 
effect  of  the  law  of  tacking,  255,  434. 

if  incorrectly  recorded,  only  notice  to  the  extent  of  the  record,  254. 
when  equitable  merged  in  legal  estate,  425. 
nature  of  mortgage,  considered,  426. 
meaning  of,  at  this  time,  428. 
equity  of  redemption,  what,  427. 
mortgagee  a  trustee,  427. 
need  not  contain  a  covenant  to  reconvey,  429. 
nor  a  covenant  to  pay  the  debt,  480. 

absolute  deed  may  in  equity  be  shown  to  be  a  mortgage  by  parol  429. 
not  so  in  a  court  of  law,  429. 
no  implied  covenant  in,  430. 
power  of  6ale  not  necessary,  430. 

an  absolute  deed,  if  intended  as  a  mortgage,  should  be  recorded  as  such,  480. 
not  enough  to  record  it  as  a  deed,  431. 
purchaser  with  notice  bound  by  unrecorded  mortgage,  431. 
creditors  may  impeach  it  by  parol,  431,  432. 
deed  and  defeasance  treated  as  one  instrument,  482. 
no  reconveyance  necessary  on  payment  of  mortgage,  433. 
how  discharged  on  payment,  433. 
estate  of  mortgagor  liable  to  dower,  &c.  433. 
except  on  an  instantaneous  seisin,  434. 
may  be  sold  on  execution,  433. 
mortgagor  treated  as  owner  till  foreclosure,  433. 

may  cut  timber,  434. 

rule  as  to  growing  crops,  434. 
by  deposit  of  title  deeds,  434,  435,  440,  441. 
for  future  advances,  486,  437. 
for  consideration  money,  has  preference,  437. 
priority  under  recording  act,  438. 
effect  of  tender  on  lien  of,  442. 


Index.  783 

MORTGAGE— continued. 

equitable,  postponed  to  creditors  without  notice,  441. 
agreement  to  give  a  mortgage,  effect  of,  442. 
tender  of  the  amount  due,  effect  of,  442. 
interest  of  mortgagee  before  foreclosure,  444 
of  mortgagee  in  possession,  445. 
his  rights  and  duties,  445,  446. 
redemption,  equity  of,  447,  448. 
remedies  of  mortgagee,  449,  450. 
modes  of  foreclosure,  450. 

Btrict  foreclosure,  when  it  extinguishes  the  debt,  450. 
in  what  cases  it  amounts  to  a  discharge  of  the  debt,  451. 
concurrent  remedies  of  mortgagee,  451. 
mode  of  foreclosure,  451,  452. 
order  of  payment  and  distribution  of  surplus,  453. 
paying  off  liens,  454. 

by  whom  payable  as  between  heir  and  executor,  567. 
the  primary  fund  of  the  creditor,  567. 

N 
NEW  TRIAL, 

in  what  cases  bill  for,  will  lie,  357. 
NON-COMPOS  MENTIS, 

what  constitutes,  195, 196.     See  Lttstaoy. 

contracts  of,  when  void  and  voidable,  195. 

by  whom  they  may  be  avoided,  195. 

what  capacity  essential  to  a  contract,  201. 
NOTICE, 

to  one  partner,  notice  to  all,  191. 

its  effect  on  purchasers,  249. 

to  agent  or  attorney,  notice  to  principal,  249,  250,  608. 

qualification  of  the  rule,  250,  351,  608. 

when  persons  dealing  with  agent  chargeable  with  notice  of  his  instructions, 
250,  608. 

possession  of  real  property  is  notice,  251. 

so  possession  of  tenant,  251. 

under  the  recording  laws,  253,  254. 

record  of  deeds,  &c.  not  notice  of  collateral  facts,  256. 

of  assignments,  460. 

purchaser  without  notice,  from  a  fraudulent  purchaser,  608. 

a  purchaser  with  notice,  from  a  purchaser  without  notice,  608. 

when  notice  to  the  attorney  must  be  in  the  same  transaction,  and  when 
good  without,  609. 
NUISANCE, 

public  or  private,  388. 

restrained  by  injunction,  888  to  392. 

injunction  must  be  applied  for  by  attorney  general,  when,  406. 


784  Inu*^. 

0 

OBSERVATORY, 

trusts  in  favor  of,  allowed,  417. 
ORDER, 

upon  a  fund,  when  an  equitable  assignment,  463. 

when  an  assignment  in  full,  and  when  pro  tanto,  463. 
ORNAMENT, 

waste  to  cut  down  trees  planted  for,  372. 

what  are  deemed  such,  372. 


PAROL  EVIDENCE, 

inadmissible  to  contradict  a  written  agreement,  when,  286. 

when  admissible  in  equity  to  show  a  deed  a  mortgage,  429. 

not  admissible  at  law,  429. 
PAROL  RESCISSION 

of  contract  a  bar  to  an  action  for  a  specific  performance,  289. 
PARTIES, 

when  numerous,  how  to  proceed,  326,  327. 

in  case  of  assignments,  462. 
PARTITION, 

what  estates  at  common  law  held  in  common,  and  the  remedy  for  partition. 
699. 

advantages  of  remedy  in  equity,  701. 

compensation,  when  made  for  equality  of  partition,  701,  702. 

when  a  sale  of  premises  is  ordered,  703,  704. 

when  a  servitude  may  be  charged  on  one  of  the  shares,  704. 

when  title  is  doubtful,  704. 

of  an  equity  of  redemption,  704. 

when  the  plaintiff's  portion  may  be  set  off,  and  the  defendants'  portions  ag- 
gregately, 705. 

when  compensation  will  be  decreed  for  equality,  705. 
PARTNERS, 

accounts  between,  101,  104. 

each  partner  agent  for  his  companion,  190. 

may  release  a  debt  due  the  firm,  190,  717. 

a  release  to  one,  good  as  to  all,  190. 

notice  to  one,  notice  to  all,  191. 

effect  of  promise  by  one,  on  statute  of  limitations,  191,  728. 

when  estate  of  deceased  partner  may  be  reached,  193. 

transactions  between,  how  viewed,  193. 

residuary  interest  of,  can  be  reached  by  creditor,  239. 

executors  of  deceased  partner  restrained  from  using  the  partnership  m*ute, 
in  what  cases,  403. 

joint  tenants  of  the  stock,  707.     See  Partnership. 


Index.  *86 

PARTNERSHIP, 

ground  of  the  jurisdiction,  706. 

joint  tenants  of  the  stock,  707. 

effects  of  partnership  a  trust  fund,  708. 

what  constitutes  a  partnership,  708,  709. 

"when  real  estate  held  in  partnership,  710,  711. 

separate  creditors  of  partner  no  right  to  partnership  property  till  joint  debts 

paid,  712. 
■where  persons  liable  by  holding  themselves  out  as  partners,  731. 
limited  or  special  partnership  under  the  statute,  713  to  710. 
mode  of  forming  it,  and  liability  of  the  partners,  713,  714. 
in  case  of  insolvency,  715. 
in  whose  name  business  done,  715,  716. 
how  dissolved,  715,  717. 
partnership  may  be  formed  by  parol,  716. 
one  partner  may  release  a  debt,  717. 
dissolved  by  death,  insanity,  or  bankruptcy,  717. 
by  marriage  of  a  feme  sole,  717. 
by  breaking  out  of  war  between  two  countries,  where  the  members  become 

subjects  of  hostile  governments,  717. 
by  assignment  by  one  partner,  718. 
.n  what  way  partnership  continues  after  dissolution,  and  for  what  purposes, 

718. 
right  of  surviving  partner  to  carry  on  the  business,  718. 
with  respect  to  third  persons  after  dissolution,  what  notice  necessary,  718. 
how  effects  are  applied  in  cases  of  insolvency,  719. 

where  administering  their  own  funds,  copartnership  creditors  no  lien,  719. 
how,  in  case  of  insolvency,  719. 
if  surviving  partner  insolvent,  equity  holds  the  estate  of  the  deceased  liable 

719. 
on  execution  against,  one  partner,  how  and  to  what  extent  partnership  prop 

erty  sold,  720  to  724. 
rule  in  England,  721. 
rule  in  N.  Y.  722,  723. 
sale  of  a  special  interest  in  property,  725. 
how,  on  sale  by  execution  against  pawnee,  725. 
how,  with  respect  to  delivering  possession,  726. 
on  dissolution  of  partnership,  relief  in  equity,  when  necessary,  727. 
PART  OWNERS, 

bound  to  good  faith  towards  each  other,  193. 
transactions  between,  193. 
PART  PERFORMANCE, 

when  it  takes  the  case  out  of  the  statute  of  frauds,  282,  283. 
principle  on  which  the  doctrine  rests,  283  et  aeq. 
what  acts  amount  to,  284  to  286. 
partial  payment  not  such  act,  284. 
payment  in  full  is  such  act,  284,  285. 
Eq.  Jur.  99 


786  Index. 

PARTY  WALL, 

where  equity  compels  making  or  repairing  same,  115,  116. 
PATENTS, 

infringement  of,  restrained  by  injunction,  383. 
PAYMENT, 

how  appropriated,  and  by  whom,  92  to  100.    See  Appropriation  of  Pay- 
ments. 

rule  of  civil  law,  94  et  seq.  note. 

effect  of  part  payment  by  one  of  two  or  more  joint  debtors,  on  statute  of 
limitation,  191,  728. 

of  judgment,  remedy  of  defendant  on,  352. 
PEACE, 

bills  of,  323.    See  Bills  of  Peace. 
PENALTIES, 

relief  against,  and  the  ground  thereof,  55. 

not  relieved  against,  when  damages  stipulated,  56. 
PERSONAL  ESTATE, 

the  primary  fund  to  pay  debts  and  legacies,  564. 
PIOUS  USES.    See  Chabities,  569. 
PLEDGES, 

wherein  they  differ  from  a  mortgage,  456. 

what  essential  to,  456. 

pledgee  may  call  on  pawnor  to  redeem,  456. 

for  future  advances,  456. 

of  property  not  capable  of  manual  delivery,  458. 

interest  of  pawnor  liable  to  execution,  725,  726. 

but  possession  not  delivered  to  purchaser  till  he  redeems,  726. 
POLICIES  OF  INSURANCE, 

relieved  against  in  equity  for  fraud,  167,  168. 
POSSIBILITY, 

when  assignable  and  when  not,  461. 
POSSESSION 

in  vendor  after  sale,  evidence  of  fraud,  241,  242,  &c.  , 
POST  OBITS, 

when  relieved  against,  180,  181. 
POWERS, 

mistakes  in,  relieved,  83,  84. 

defective  execution  supplied,  84. 

when  a  trust  power  is  imperative,  84. 

illusory  appointments,  207,  208. 

to  sell  land  by  will  to  pay  debts,  authorizes  a  mortgage  for  the  same  prur« 
pose,  486. 
PRINCIPAL  AND  AGENT, 

transactions  between,  189, 190.    See  Agent. 

cannot  interplead  each  other,  316. 
PRINCIPAL  AND  SURETY    See  Surety  and  Partners,  190. 


Index  787 

PURCHASER, 

with  notice  of  a  trust,  becomes  a  trustee,  249,  608. 

from  one  who  had  not  notice,  may  be  protected,  249,  608. 

reason  of  the  rule,  249,  608. 

information  sufficient  to  excite  inquiry,  when  notice,  249. 

of  real  estate,  chargeable  with  notice  of  party  in  possession,  251. 

chargeable  with  notice  of  lis  pendens,  252. 

what  necessary  to  constitute  a  lonafde  purchaser,  &c.  256. 

what  title  may  be  insisted  on  by,  295,  296. 

with  notice  of  a  contract  by  his  vendor  to  sell,  may  be  compelled  to  perform 
it,  298,  301,  302. 

from  an  executor,  knowing  that  he  sells  in  violation  of  his  trust,  is  liable 
569. 
PURPRESTURE, 

what  constitutes,  398. 

wberein  it  differs  from  a  nuisance,  398. 

how  restrained  and  when,  398,  399. 

Q 

QUIA  TIMET, 

in  what  cases  it  lies,  303,  328.    See  Bills  Quia  Timet,  Receive*. 

R 

RAILROAD, 

in  a  street,  not  per  se  a  nuisance,  402,  406. 

nor  is  it  a  purpresture,  406. 
RECEIVER, 

when  appointed,  332. 

how  treated  at  common  law,  332. 

at  what  time  the  appointment  vests  property,  332. 

power  under  the  New- York  statutes,  333. 

may  bring  actions  in  his  own  name,  333,  336. 

his  appointment  does  not  affect  priority  of  liens,  334. 

protected  by  court  when  acting  by  its  order,  334. 

otherwise,  not,  335. 

when  property  is  in  the  hand  of  a  third  person,  duty  of  receiver  wfth  re- 
spect to,  335. 

his  possession,  when  protected,  835. 

represents  the  creditors,  336. 

may  attack  a  fraudulent  assignment,  337. 

when  treated  as  a  trustee,  418. 
RECORDING  LAWS, 

general  object  of,  253,  254. 

when  the  record  operates  as  notice,  253,  254. 

♦o  what  extent  notice,  if  the  record  differs  from  the  original,  254. 


T83  Index. 

RECORDING  LAWS— continued. 

if  record  be  defective,  254. 

unrecorded  mortgages  preferred  to  a  subsequent  docketed  judgment,  255. 

record  not  notice  of  collateral  facts,  256. 
RECOUPMENT, 

origin  of  the  doctrine  of,  354. 

when  admissible  as  a  defense,  354,  355, 

•when  lost  if  not  used  in  time,  355. 
REDEMPTION, 

equity  of,  how  enforced,  447,  448. 

as  to  amount  to  be  paid,  448,  449. 

by  judgment  creditor,  what  bound  to  pay,  449. 

by  pawnor  of  a  pledge,  456. 
RE-EXECUTION 

of  agreements,  doctrine  of,  300,  301. 
RELEASE, 

relieved  against  when  obtained  by  fraud,  168. 

to  guardian,  when  set  aside,  183. 

to  one  of  two  or  more  joint  debtors,  its  effect,  190. 

by  one  partner,  &c.  its  effect,  190. 
RELIGIOUS  CORPORATIONS, 

how  formed,  and  what  trusts  they  may  execute,  734  to  736,  and  note. 

bound  to  perform  conditions,  736. 

the  trustees  alone  incorporated,  736  to  738,  note. 

the  congregation  is  not  incorporated,  738. 
REMAINDER, 

doctrine  of,  at  common  law,  476. 

how,  under  revised  statutes,  476. 
RENT, 

what  it  is,  127. 

when  recoverable  in  equity,  133  to  136. 

when  apportioned,  127. 

when  lost  by  eviction,  128. 

when  the  land  charged  with  rent  is  sunk,  ther#  fe  no  apportionment   and 
rent  is  lost,  137. 

if  land  be  burnt  with  fire,  rent  is  payable,  1W. 

if  deed  be  lost  equity  will  entertain  jurisdiction  for  rent,  134. 

relief  not  given  to  a  landlord  who  is  enforcing  a  forfeiture  at  law,  135. 
RESCISSION, 

of  contract  by  parol,  when  a  bar  to  an  action  for  specific  performance,  239. 

action  to  lescind  contract  by  vendee,  290. 

when  granted,  302. 

ground  of  the  equity  to  relief,  303,  306. 
RESULTING  TRUSTS.    See  Trusts. 

abolished  by  revised  statutes,  except,  &c.  417  599. 

how  proved  and  disproved,  600,  602. 


Index  78<» 

S 

SALVORS, 

meaning  of  the  term,  123. 
in  what  cases  applicable,  123. 
SATISFACTION 

of  mortgages,  how  obtained,  449. 

when  legacy  amounts  to,  542. 

when  satisfied  by  testator  in  his  lifetime,  543. 
SEQUESTRATION, 

of  effects  of  a  corporation,  when  obtained,  750,  751. 

how  obtained,  750,  751. 
SHIP, 

when  sailing  of,  restrained  by  injunction,  362. 
SOCIETIES, 

charitable,  when  allowed  to  take  by  devise  or  bequest,  576 
SOLICITOR  AND  CLIENT, 

transactions  between,  how  viewed,  171,  172. 

how  with  respect  to  matters  not  in  litigation,  174. 
SPECIFIC  PERFORMANCE, 

in  what  cases  granted,  260,  262. 

not  granted  on  a  gratuitous  promise,  263. 

inadequacy  of  consideration,  when  a  defense,  263,  265. 

rule  in  this  state,  266. 

no  defense  in  auction  sales,  265. 

when  inadequacy  is  gross,  264. 

what  required  of  a  party  seeking  a  specific  performance,  264. 

character  of  the  agreement  to  be  enforced,  267,  271. 

want  of  mutuality  and  the  exception,  267. 

must  be  fair  and  just  in  all  its  parts,  267,  268. 

not  a  hard  and  unconscionable  bargain,  268. 

infants  decreed  to  execute  agreements  made  by  their  ancestor,  269. 

lunatics  decreed  to  perform  agreements  by  their  ancestor,  270,  271. 

agreements  relative  to  personal  property,  when  decreed  to  be  enforced,  271 
to  276. 

when  enforced  as  to  stock,  271,  272. 

when  as  to  contracts,  272,  278. 

agreements  as  to  personal  acts,  276  to  279. 

grounds  of  the  jurisdiction,  276. 

agreements  as  to  land,  279. 

agreements  within  statute  of  fraud,  280,  281. 

when  refused,  271,  272. 

when  remedy  not  mutual,  267,  274. 
when  bargain  is  unconscionable,  268. 
if  bargain  is  uncertain,  268. 


?90  Index. 

SPECIAL  PERFORMANCE— continued. 
if  It  be  an  illegal  contract,  268 
if  consideration  is  inadequate,  268. 
if  its  performance  becomes  impossible,  268. 
if  it  is  tainted  with  fraud,  268. 
if  remedy  at  law  adequate,  268. 
if  agreement  be  gratuitous,  263. 
if  title  be  defective,  296. 
if  plaintiff  is  in  fault,  29T. 
■when  part  performance  will  entitle  party  to  relief,  283  et  »eq. 
when  parol  rescission  a  bar,  289. 
when  waived  by  parol,  289. 

when  decreed  with  compensation  for  defects,  290,  291. 
bill  will  not  lie  for  compensation  alone,  291. 
party  seeking  performance  must  be  ready,  291,  292. 
not  negligent,  &c.  292. 
when  time  is  material,  292  to  294. 
conditions  precedent  must  be  performed,  294,  295. 
when  contracts  not  within  the  statute,  297. 

a  purchaser  without  notice  from  vendor  of  an  executory  agreement  to  con- 
vey to  another,  protected,  298. 
a  purchaser  with  notice,  liable  to  complete  the  bargain,  298. 
money,  when  treated  as  land,  298,  299. 
re-execution  and  correction  of  agreements,  300. 
SPECIFIC  LEGACIES, 

general  description  of,  502  to  505. 

do  not  in  general  abate  ratably  with  other  legacies,  557.    See  Legacies. 
STIPULATED  DAMAGES, 

not  relieved  against  in  equity,  56. 
STOCKS, 

when  transfer  of  restrained  by  injunction,  362,  363. 
STREET, 

when  public,  obstruction  of,  a  nuisance,  392. 
SUBSCRIPTIONS, 

made  void  by  a  secret  agreement  to  refund,  25^,  258. 
the  like,  when  invalid  subscription  is  taken,  257,  258. 
SUPERSTITIOUS  USES, 

defined,  and  when  invalid,  596. 
how  ascertained,  596. 
SURCHARGE  AND  FALSIFY, 
meaning  of  the  terms,  142. 
SURETIES, 

contribution  between,  107.    See  Contribution. 

where  more  sureties  than  two,  and  one  pays  the  whole,  he  must  sue  each 

for  contribution,  108. 
creditor  may  proceed  at  once  against  surety,  108. 


Index.  791 

SURETIES— continued. 

may  resort  to  equity  and  compel  creditor  to  proceed  againsl  principal, 
108,  327,  331. 

most  indemnify  the  creditor,  108. 

a  variation  of  the  contract  hy  the  creditor  discharges  surety,  whetr,  109. 

it  discharges  property  bound,  109. 

giving  time  by  creditor  discharges  surety,  109. 

when  surety  entitled  to  exoneration,  109.    See  Exoneration. 

difference  between  law  and  equity,  109. 

surety  entitled  to  the  securities  which  the  creditor  has  against  the  principal, 
110. 

entitled  to  be  subrogated  to  the  rights  of  the  creditor,  111. 

when  giving  time  to  principal  discharges  the  surety,  111,  112. 

a  joint  judgment  against  the  sureties  does  not  prevent  the  relation?   ,p  aa 
between  themselves  from  being  proved,  113,  114. 

whether  an  usurious  agreement  giving  time  will  discharge  surety,  114. 

when  he  can  be  relieved  for  usury  of  the  borrower,  220,  221. 

injunction  when  granted  in  his  favor,  346. 
SURPRISE, 

meaning  of  the  term,  205. 

when  a  ground  of  relief,  205,  206. 

when  an  objection  to  specific  performance,  288. 
SURROGATES'  COURTS, 

in  what  cases  have  jurisdiction  over  legacies,  499. 

the  like  over  debts,  &c.  559,  560. 

may  liquidate  an  equitable  as  well  as  legal  claim,  560. 

jurisdiction  to  appoint  guardians,  622. 

T 
TACKING 

abrogated  by  the  recording  laws  in  New- York,  255,  256. 
TAXES 

paid  by  mortgagee,  allowed  to  him,  446,  448. 
TENDER, 

effect  of,  on  mortgage,  442. 
TIME, 

when  material  in  actions  for  a  specific  performance,  292,  293. 

and  when  not,  293,  294. 

when  not  of  the  essence  of  the  contract,  may  be  disregarded,  293,  294. 

but  not  when  it  is  the  essence  of  it,  294. 

rule  applies  to  both  parties,  295. 
TITLE, 

what  purchaser  entitled  to,  295,  296. 

if  defective,  not  compelled  to  complete  the  purchase,  296. 
TOLERATION, 

of  all  religions,  does  not  affect  the  law  with  respect  to  charities,  577,  578. 


792  Index. 

TRADE-MARKS, 

relief  against  pirating,  in  equity,  206. 

•when  injunction  granted  to  prevent  pirating,  403,  404. 
TRUSTS, 

definition  of,  186,  412. 

estates  in,  186. 

of  what  kind  at  common  law,  409. 

origin  of  trusts,  409  to  412. 

statutory  alterations  of,-  412  to  416,  &c. 

future  creation  of,  how  far  prevented,  416. 

kind  of  trusts  recognized  by  statute,  416. 

express  trusts  and  implied  trusts,  416,  425. 

resulting,  abolished  except  in  favor  of  creditors  and  in  cases  of  fraud,  417. 

how  proved  and  disproved,  600,  602. 

express,  when  allowed,  417,  418. 

when  purchaser  of  trust  estate  a  trustee,  418,  419. 

and  when  not,  419,  422. 

on  death  of  sole  trustee,  trust  vests  in  the  court,  419. 

mere  formal  trusts  abolished,  421. 

property  held  in  trust,  when  liable  to  creditors,  421. 

in  what  cases  not  assignable,  421. 

invalid,  vests  no  estate  in  trustee,  422. 

when  valid  as  a  power,  422. 

invalid  trusts  do  not  vitiate  legal  ones,  424 

of  personal  property  not  within  the  act,  423. 

trusts  for  accumulation,  how  regulated,  424. 

when  property  is  bequeathed  in  trust,  and  no  trustee  appointed,  who  is 
trustee,  424. 

express  trusts,  executed  and  executory,  425. 

relate  to  real  and  personal  property,  425. 

created  by  deed  or  devise,  425. 

in  mortgages,  426.    See  Moetgages. 

in  assignments,  465  et  seq.    See  Assignments. 

in  marriage  settlements,  472  et  seq. 

executed  and  executory,  474. 

to  receive  rents  and  profits,  &c.  477. 

how  long  may  accumulate,  477. 

how  long  ownership  of  personal  property  suspended,  477.  See  Lkqa.oies,  "Wills. 

in  wills,  483,  486.     See  Wills. 

created  by  a  charge  to  pay  debts  and  legacies,  486. 

to  uphold  doctrines  tending  to  subvert  the  christian  faith,  invalid,  596. 

tending  to  licentiousness,  or  dangerous  to  the  safety  of  the  state,  void,  596. 

implied  or  constructive,  598.    See  Implied  Tbtjsts. 
TRUSTEE, 

allowances  to,  at  common  law,  184. 

purchases  by,  of  trust  estate,  186,  249,  608,  612. 


Index.  79$ 

TRUSTEE—  continued. 

right  of  cestui  que  trust  with  respect  to,  186. 

to  gain  no  benefit  by  186. 

purchase  by  trustee  of  trust  estate  at  auction,  186,  187. 

reasons  why  trustee  shall  not  purchase  for  himself,  187,  604  to  606. 

when  trustee  may  buy  from  cestui,  187. 

when  court  allows  him  to  purchase,  187, 188. 

cannot  deal  for  his  own  benefit  with  the  funds  of  the  estate,  188. 

when  resignation  of,  accepted,  428. 

in  what  cases  removable,  423,  470. 

violation  of  duty  ground  of  removal,  470. 

neglect  of  duty  ground  of  removal,  470. 

may  be  compelled  to  do  his  duty,  47,  471. 

not  indispensable  to  a  marriage  settlement,  479. 

office  and  duty  of,  611,  612,  &c. 

cannot,  after  accepting,  renounce  the  trust  without  leave  of  the  court, 

when  a  joint  trust,  all  must  act,  612. 

effect  of  death  of  all  the  trustees,  612 

must  reduce  the  property  to  his  possession,  613. 

duly  invest  it,  and  keep  full  accounts,  613. 

only  answerable  for  his  own  default,  613. 

must  take  real  security  or  invest  in  the  funds,  613. 

must  pay  to  the  party  entitled,  614. 

cannot  delegate  his  trust,  612,  614. 

if  he  mingles  trust  funds  with  his  own  he  is  chargeable  with  interest,  614 

so  also  when  guilty  of  gross  neglect,  614. 
TSUST  COMPANY, 

New- York  Life  Insurance  and  Trust  Co.  when  allowed  to  receive  legacies, 
&c.  558,  559. 

when  to  be  guardian  of  the  estate  of  infants,  without  giving  bail,  559. 


u 

UNDERHAND  AGREEMENTS, 

relieved  against,  209. 
UNDUE  INFLUENCE, 

what  is  meant  by  the  term,  171. 

when  inferred,  without  proof,  171. 

in  transactions  between  attorney  and  client,  171. 

not  inferred  from  the  relationship  alone,  174. 

by  parent  over  child,  177. 

its  effect  when  arising  from  the  confidential  relations  of  the  partie*,  60S 
See  Fraud  and  Impukd  Trusts. 
UNSOUND  MIND, 

doctrine  with  respect  to,  675  to  G79.    See  Idiots,  Lunatics. 
Eq.  Jur.  100 


Y94  Index. 

USES  AND  TRUSTS, 

general  view  of,  and  as  modified  by  statute,  400. 

incidents  of  uses  at  common  law,  410. 

inconveniences  of,  410,  411,  413. 

how  a  use  might  be  created  at  common  law,  412. 

when  required  to  be  in  writing,  413,  414. 

not  raised  without  a  consideration,  412. 
USURY, 

principles  on  which  relieved  against  in  equity,  216. 

doctrine  with  respect  to,  in  N.  Y.  reviewed,  216  to  222. 

action  for  discovery  of,  sustainable,  224. 

money  paid  on  usurious  agreement,  when  recovered  back,  224. 

when  party  seeking  equity  must  pay  the  sura  loaned,  223  to  225. 


VENDEE, 

when  land  in  his  hands,  the  primary  fund  to  pay  judgment  against  vendor, 
568. 

when  a  trustee  of  the  purchase  money,  610. 
VENDOR, 

possession  of  after  sale,  badge  of  fraud,  241,  242,  &c. 

seeking  specific  performance,  286. 

when  must  show  title,  289. 

lien  of  for  purchase  money,  301. 

when  a  trustee  of  the  vendee,  610. 
VESTED 

and  contingent  legacies,  502  et  seq.    See  Legacy. 
VESTING 

of  interests  favored,  513. 
VOLUNTARY  CONVEYANCES, 

what,  227. 

void  as  against  creditors,  but  good  between  the  parties,  240. 

not  specifically  enforced,  263. 
VOLUNTARY  SETTLEMENTS, 

when  void  and  when  valid,  229  to  231. 

doctrine  of,  in  N.  Y.,  232,  233,  235. 

w 

WAGER  CONTRACT, 

when  valid  at  law,  225. 

when  relieved  against  in  equity,  225. 
WAIVER, 

when  by  parol,  a  bar  to  specific  performance,  289. 
WARD, 

transactions  with  guardian,  182. 

marrying  with,  without  consent  of  court,  369 


Index.  795 

WARRANTY, 

difference  between  warranty  and  representation,  149. 

implied  warranty  of  title,  when,  155. 

of  quality,  when,  155  to  157. 

a  sound  price  does  not  imply  a  warranty,  157. 

implied  warranty  of  title  of  a  chattel,  by  vendor  in  possession,  but  not  if  he 
were  out  of  possession,  158,  159. 

implied  as  to  goodness  of  provisions  sold  for  domestic  use,  but  not  as  mer 
chandise,  158. 
WASTE, 

when  equity  relieves  in  case  of,  138. 

what  constitutes,  138,  139,  370  et  seq. 

when  restrained  by  injunction,  369. 

remedies  to  prevent  or  punish,  379,  380. 

when  the  action  did  not  lie  at  common  law,  378,  879. 
WATER  COURSE, 

unauthorized  diversion  of,  a  nuisance,  392. 

protected  by  injunction,  392. 
WEAKNESS  OF  MIND, 

how  it  affects  contracts,  194, 195. 

in  what  cases  relieved  against,  195. 

in  whose  favor,  195. 

what  constitutes  incapacity  of  mind,  195. 

its  effect  on  contracts,  201. 

connected  with  other  disqualifications,  its  effect,  202. 
WHARF, 

when  erection  of,  restrained,  399. 
WIDOW, 

when  put  to  her  election  between  a  legacy  or  a  devise  and  her  dower,  546. 
et  seq.    See  Election. 
WIFE'S  EQUITY,  635  et  seq.    See  Marbied  Women. 
WILLS, 

of  trusts  therein  and  the  construction  thereof,  483. 

former  rule  with  respect  to  lands  after  acquired,  484. 

present  rule,  484. 

from  what  time  a  will  speaks,  484. 

when  it  passes  all  the  estate  in  land  the  testator  had  at  his  death,  484,  485 

when  it  passes  a  fee  without  words  of  limitation,  485. 

effect  of  a  charge  on  the  devisee,  485. 

no  particular  words  necessary  to  pass  a  fee,  486. 

by  what  words  an  effective  charge  is  made,  487. 

if  the  thing  required  cannot  be  done  without  a  sale  of  real  estate,  it  is  well 
charged,  487,  488. 

construction  of,  rules,  490. 

intention  of  testator,  how  sought,  490,  497. 

in  what  sense  words  are  to  be  understood,  490. 

■will  and  codicil  one  instrument  for  this  purpose,  490. 


796  Index. 

WILLS — continued. 

when  admitting  of  two  constructions,  the  one  most  consistent  with  the  whole 

will,  adopted,  491. 
grammatical  sense  may  be  disregarded,  491. 
the  order  of  arrangement  not  always  followed,  491. 
technical  words,  how  understood,  492. 
words  not  technical,  493. 
general  intent  controls  particular  intent,  493. 
tne  words  "  children"  and  "  issue"  how  construed,  494. 
ambiguity,  how  explained,  494. 
of  real  and  personal  property,  how  far  alike,  499. 
who  may  make  same,  499. 

devising  or  bequeathing  to  a  charity,  when  void,  576. 
limitaticn  of  sum,  to  be  given  by,  576. 


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